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EEPORT9 

CASES 

ARGUED  AND  DETERMINES 
IK  THE 

COURT  OF  APPEALS 

MARYLAND, 

IN  1806,  1807,  1808,  &  iSOfc 


BY  THOMAS  HARRIS, 

Clerk  of  the  Court  of  .Appeal*. 

REVERDY  JOHNSON, 

Attorney  at  Law 


VOLUME  ii.; 

HCRffldCtAlifll 


ANNAPOLIS: 
PRINTED  BY  JONAS  GREEN/ 


\i 


COP 


ERRATA* 


58 25  For  appellees  read  appellee. 

64 19  In  the  margin— For  (~E.  S.J  read  f  W.  S.} 

89 1    Erase  after  the  word  Delight  in  the  first  line  to  and  including  the  WOJ\J 

Delight  in  the  third  line. 

96 7    After  this  line  insert  JUDGMENT  AFFIBMEII. 

97 22  Before  May  insert  inverted  commas. 

99 3     Of  the  marginal  note.     For  effect  read  affect, 

102 32  For  the  plaintiff  read  him  the  defendant. 

104 41  For  1796  read  1706.      

113 1     for  pro  ut  re&dprout» 

190 32  Erase  in. 

193 27  For  1766  read  1796. 

230 56  Of  the  marginal  note.    For  liberal 'read  literal. 

245 4    After  band  insert,  which  was  executed  to  t/te  Proprietary  on  tht  %Qth  of 

January,  1774. 

251 33  For  by  read  to  try. 

253 -30  Before  called  insert  inverted  commas^ 

258 22  For  Laws  read  Lawsori, ' 

378 39  Erase  not. 

408 1    For  trustee  read  trustees. 


IN  THE  INDEX, 


520 tit.  CONVEYANCE  10,  line  5.    For  4  read  44. 

521 tit.  COURT  OF  CHANCERY. 13,  line  4.    After  such  insert  matter? 

533 tit.  EJECTMENT  35,  line  18.     After  was  insert  no. 

543— —tit.  EXECUTORS  &,  ADMINISTRATORS  8,  line  1.      For  the  executor, 
read  an  executor  de  son  tort. 

550 tit.  HEIR  1,  line  3.     For  it  read  ini  and  after  being  insert  a  comma, 

555— ^t,  LOCATION  or  LANDS  8,  line  23.    After  the,  insert  two. 


NAMES  OF  TKE  JUDGES,  &c. 

DUHING  THE  FERIOD    GOMPBISED     IN  THIS   VQJ.UME. 

OF  THE  COURT  OF  APPE.M 

Hon.  JF.HSMTAII  TGAVSLKY  CIUSE,   Chief  Judge. 

lion.  .».».VKS  Tir.«iiMA  v,  Judge.  ' 

Hon.    WILLIAM  POLK,         do. 

Hon.   joiix  HrcHANAS,         do. 

Hon.  JOSKPH  Hori'KR  NICHOLSON,   do. 

Hon.   Joiuf  MACKALL  GASTT,   do. 

Hon.     KlCHAIlD  TjLUH>lA>   KAHLE.(.l)    d<>. 


OF,  THE  COURT  OF  CHANCERY 

Hon.   ALETASPETI  CO^TF.U  HANSCS,  Chancellor. 
Mou.  WILLIAM  KiLT)f,(b)  do. 

OF  THE  LATE  GENERAL  COURT. 

Hon.  .Tf.nF.MTAH  TOWN-LET  CHASK,  Chief  Judge. 
Hon.  GABHIKL  DUVALL,  Judge. 
Hon.   JOHN  T)OXK,  do.    • 

Hon.   RICHAHD  SrajGG,(c)  do» 

OF  THE  I.ATE   COUNTY  COURTS. 

FIRST  TirsTRTCT  —  Sainf-Afctry's,  Culvert,  Chnrlr?  nnd  Prince-  Geortfffg  Counties. 
Hon.   MiniAi:r.  JF.NIKKU  STOM;,  Chief  Justice,  appointed  17th  'of  January  1791, 
Hon.   HifHiHji  SPMIKG,  do.  dp.  2<Sth  of  January  18U2. 

Hon.  joujf  MA»  KALL  GAXTT,  do.  do'.          1  1th  of  February  1803. 

sr.i'o\T>  i>isTnirT^-rVe//f  Kf.nf,  Qtieen-^lnne's  and  Tafbot  Connties. 

lion.  JA.MES  TILBHMAX,  Chief  Justice,'  uppomtcd  l~tii  of  January  1791. 

TIITHD  IHSTJIICT  —  Anne-Jtrundel,  Baltimore  and  Ifurford  Counties. 

HOIJ.   Hf.Niir  RjjieELT,  Chief  Justice,  appointed  25th  of  Nbytmber  1796. 

TOVRTII  T>isTRicT-~-C«rw//'/7e,  DorcJiCftci',  Somerset  and  Wonetttr  Counties. 

Hon.  'WILLIAM  WI.'ITTIXCTOS,  Chief  Justice,  'appointed  25th  'of  Fi-lmiary  1799. 

Hon.   WILLIAM  POLK,  do.  do.          28tl\  '  of  January  18UV?. 

FIFTH  DISTRICT  —  Washington,  Frederick^  Mmtgomcry  nnd  .v//f£r/r>y  Counties. 
Hon.   RICHAHD  POTTS,  Chief  Justice,  appointed  ]5th  of  October  17Po. 
Hon.  WILLIAM  CHAIK,    :     do.  do.          20th  of  f)ctober  1801. 

Hon.   AViLHAM  CiArr(iicTT,  do.  do.  28th  of  January  Io02. 

OF  THE  NEW  COUNTY'  COURTS. 


IRST  JPIMCIAL  DISTRICT— .Sa/«/-J/rtry'*,  Charl;j  and  Frinec-G&trgt's  Coiiiitic*. 
Ion.   JOHN  MVCRAT.L  GAN'TT,  Chief  Judge. 
Ion.   F.DMCNn  KKY,  Associate  Judge. 
Ion.   DASIEI  CLAIIK.^,         do. 

(.-!>  AppninteiT  the  20ih  of  May  1SOO  tn  fill  tiie  vacnncy  o<-cn<iojir(t  1>y  the  <!pa!h  of  J.nl-jr  T/'-  ^^ii.i. 

00  A|)|i»iiiie<1  I  be  25th  ol'-hiimary  1S06  in  tho  p'ai-e  o'f  Ch:,;!.  Ha-'-n'ri,  li.-t.  axil.    ' 

(cj  Appo-nl-d  tbt  »0'U»  ol   Dfvfuib.v  Jt'J-  lo  liil  iflt  r^cajicj  octaiii  ;:^il  i.y  ilm  rtslg-i:;uiiii  ut  Juduc 


yj.  NAMES  OF  JUDGES,  fcc." 

SECOND  JUDICIAL  DISTRICT  —  C,cil,  Kt.nl,  Qu<en-Jbtne'*  and  Thibet 

Jlon.  JAMZS  TILBHMAX,  Chief  Judge 

lion.  I.  EMI  EL  I'l-RvtLL,  Associate  Judge. 

Hun.    Enw  \RD  WORRELL,          do. 

]ion.  KICUARD  TILMIMA*  EAHLE,  Cuief  Judge  (d). 


THIRD  JUDICIAL  DiSTRicT—Orti^r/,  Annt-Arundd  and  Montgomery  Counties. 
Jlon.  JsmzxiAH  TawxLST  CHASE,  Cliief  Judge. 
lion.   MKXRT  KIOOKLT,  Associate  Judge. 
lion    HIIHARD  HALL  Hi  uwnuu,  do. 

»OTRTH  jrnif  IAL  niSTRirr  —  Carolint,  Dorchester,  Svmcrtetznd.  Worcester  Counties  ^ 
Hon.  WILLIAM  POLK,  Chief  Judge. 
lion.  JOHN  Dour.,  Associate  Judge. 
Hon.  JAXEB  B.  HOB  BINS,  do. 

TIFTH  JUDICIAL  DISTRICT  —  Frederick,  Washington  and  AlUg  any 

Hon.  JOH*  Bt  THAXAS,  Cl»ief  Judge. 

Hon.  WILLIAM  CLAGOETT,  Associate  Judge. 

Hon.   ABRAHAM  Sinn  MR,  do. 

eixTH  JUDICIAL  DISTRICT  —  Baltimore  and  Harford  Counties. 
Hon.  Joir.ru  HOPPF.R  NKHULSOIT,  Cliiet'  Judge. 
Hon.  THOMAS  JUNKS,  Associate  Judge. 

HOD.    ZSBl-LOS   IIOLLIKSSWORTU,    do. 

OF  THE*  COURT  OF  OVER  &  TERMINER,  8cc. 

H«n,  WitTiH  DonsiY,  Chief  Justice,  appointed  9th  of  Februar}-  1800^ 
Hon.  JOHN  SCOTT,  do.  do.        5th  of  April 

ATTORNEY  GENERAL. 

Luthrr  Martin,  Esquire,  appointed  llth  of  February  1778. 
William  Pinknei/,  Esquire,       do.  ?lst  of,  December  1805. 
John  Thompson  Mason,  Esquire,  do.   12th  of  July  1806. 
John  Johnson,  Esquire,  do.  ISth  of  October  1806. 

fd)  Appointed  the  20th  uf  Ms;  1109  in  the  plact  Clu  J.  Tilthman,  deceased. 


A  TABLE 


OF   THE 


NAMES  OF  THE  CASES 


N.  B.  The  letter  v  follows  the  name   of  the   Appellant  or  Plaintiff  in   error; 
ftnd  the  word  and  that  of  the  Appellee  or  Defendant  in  error. 


A. 

Allen  r  Stewart  &  Patten,     258  f  notej 

Amos  i>  Robinson,  et  al.  321 
Attorney-General  and  Lawson, 

259  C  notej 

•             v  Jarrett,  472 

.     .    .-  and  Singery *  487 

B. 

Baker  v  The  State*  5 

'             and  Hoffman,  486 

Barnes  v  Blackiston,  et  al.  376 

Beall,  etal.  Lessee  v  Harv/ood*  167 

• and  Hamilton,  414 

Beanes  and  Leeke's  Adm'r.  D.  B.  N. 

373 

Beard  v  Hcicle,  442 

Beatty's  Adm'rs.  »  Chapline,  7 

Bennett  &.  Drury  v  Negro  Grace,  356 

Berr>%  use  of  Burgess  t>  Nicholls,  508 

Iticknell  and  Worthington,  et  al.  58 

Biddlc  &  Gray  v  Wood,  et  ux.  328 

Biggs  and  Sheeley,  3f>3 

Blackiston,  et  al.  and  Barnes,  376 

Blake  and  Ruttcr,  353 

Bond's  Adm'r.  and  Levering,  300 

Boreing's  Lessee  v  Singery,  455 

and  Singery,  487 

Boswcll  and  Shorter,  359 

Bowie's  Adm'r.  and  Gantt,  374 

Brawneranrf  G.  Sc  J.  Chapman,  352 

Brayton  qnd  F»get,  350 


Brogden  v  Walker's  Ex'r.  Legatees   & 

Devisees,  285 

Ei-ooke  a/id  Winchester,  et  al.  1 

Bryden  v  Taylor,  295 

Burgess  r  Nicolls,  5  US 

Burk  v  The  State,  426 

C. 

Chapin  v  Cruikshanks,  247 

Chapline  and  Realty's  Adm'rs.  7 

Chapman,  G.  &  J.  v  Brawner,  366 
Cheney  v  Ringgold,  et  al.  Lessee,  87 
Chew's  Lessee  »  Weems,  173  fnotej 

Christie  &  Jay  and  Goverj  67 

Clarke  ?•  Magruder,  et  aL  77 

Coleg-ate  awrf  Lynch,  34 

Conner  and  Hay,  et  aL  347 

Contee  ?>  Cooke,  17$> 

Conway's  Adm'r.  and  foe,  307 

Cooke  and  Contee,  179 

Cruikshanks  and  Chapin,  247 

Cushrnan  v  Sim's  Adm'r.  352 

D. 

Bail  and  Wingate,  76 

Dannison  r  Robinett,  et  al.  55 

Davis  r  Wilson,  et  al.  345 

's  Lessee  v  Davis's  heirs,  295 

,  et  ux.  r  Walsh,  329 

De  Laistre  and  De  bobry,    Ex'r.  of  ]>e 

Laistrc,  191 

Dennis  and  Negro  George,  45-1 


viu. 


!>  REPORTED. 


;-f   !)      ! 

Lai-  l'.l\ 

\  devisees, 

4G 

Jlor«ry  r  (!:ir..v*  402 

y's  F.x'rs. 

480 
Drury  £»  Bennett  c  N'cgro  Grace,      356 

r.. 

Kilcleii  nnri  IFrimp-  MI,  61 

:         •  s  Adm'r.  1).  I).  N.  v  Thompson's 

M4 


Fajrct  o  Brayton, 


F. 


J30 


r;. 


Gnither  anil  Ne^ro  James,  176 

Morrison,  461 

:  r  tto\vie'«  .Vlm'r.  374 

ami  Norfolk's   Kx'r.  de  son  fort, 

435 

ftusavray  o/u/Dorscv,  402 

••  lil.  tfii//  Huntt  fi  Parks,         49H 

<;iu'mirs'«  Lessee  and  Hall,  380 

.Ir's  Li'^ce  rt/J/2  Mall,  1 1 J 

(i<>M>l)oro(iifli's  Lessee  and  Keys  8t  Me- 

n»n,  369 

'          i  an//  Smith  St  Dticlianan,        367 

t       .  r  ?•  Christie  it  Jay,  67 

'••.  <-t  :"«!.  186 

*  Hidillc  v  Wood,  et  n\. 

M        .  •      .;    I .    vice, 
mi'!  I I.ill,  4S.1 

t.iiiiliy  P  Scll>y,  244 

,   et  al.    Lessee  and    Martin   & 

S  mi  tli,  248 

Tf. 

r*«  Devisees  v  Oickson's  Heirft, 

46 

H  v!l  t-  Gittln^s  Jrs.  Leuee,  H2 
.  r  <iiMin>fs\  Lessee,  380 
.  r  (iriflitli,  4>3 

n  v  Ik-all,  etftl.  41  I 
flnmmond,  et  al.  Lessee  v  Norris,  I'M 
v  Warli.-ld,  I  -I 

•  r  Ilig-pint,  ct  nx.  443 
—                   ,rton,  4tfi 

m      i       len,  6» 
:•  \ViNon, 
il,  ct  al.  Lesser, 
icr, 


379 
167 
347 
442 

llrrou  Ji  Key*  r  Goldsborough'j  Le.v 

sec,  369 

>.  et  <\\.  and  H.nmmond,          4»3 

•i  ami  William*,  4~l 

48o 

•",  l-t  al.   r   M'fToV,  .V-1 

71  worth, et  us.  f  McDonald,  et  al. 
ttO 


Hopkins  r  Stump,  et  al.  SOt 

IlOWHrd  r  Moalc,  i-t  al.  Lessee,  JJ'.t 

•  "    •  und  Ni'gro  Cato,  -V3 

Hughes  r  O'Doniu-ll,  TV24 

lluntt  i  Parks  v  Gist,  et  al.  4U3 

J. 

Jarrctt  am/ Tbe  Attorney  Genera!,  »7£ 

Jay  id  '  hristio  ami  liover,  67 
Johnson  and  Kocke,              37  fnotc.J 

Jones,  et  al.  c  Jones,  Uil 


53 


KL. 

Reefer  r  Young1, 
•  v  Marker 

Keys  &i  Heron  v  Goldsborough's   Lt-^- 
see,  ;1G'J 

Gam.  v  Swan's  Adm'.v      344 

L. 

Laidlcr  r  Young's  Lessee,  69 

Lanham  and  Tolson's  Lessee,  174 

Lawson  r  The  Attorney  General, 

259  (n»1r.  ) 

Leeke's  Adm'r.  D.  B.  N.  r  Bcanes,  373 
Lewfag  v  Bond's  A«lm'r.  300 

Loudcnaan,  Gara.  of  Harrison  v  Wil- 
M.II,  379 

Lynch  v  Colegute,  34 

M. 

M'CoyGarn.  of  Kinglar  Swan's  Adm'x. 

314. 

—  and  Hogmirc,  ot  :d.  351 

M'Doitald,  et  al.  and  llolling.sworth,  et 
ux.  '230 

and  Wagner  346 

M'Kldeny  v  Smith's  Lessee,  7i 

M'Mcclicn  v  The  Mayor  8tc.  of  Balti- 
more, 41 
Magill  and  Browning,  3»8 
Magruder,  et  al.  ana  C  larkc,  77 
Marker  and  Kecfer,  55  ('note.  ) 
Martin  &  Smith  r  Gunby,  ct  al.  L  . 

Mayor  &c.  of  Baltimore  and  M  'Mcchen, 

41 

Moale,  ct  al.  Lessee  and  Howard,    2+5 
Morrison  c  Galloway,  461 


Muse,  ct  al.  Lessee  and  Greene,       62 

N. 

Nejfro  Cato  v  Howard,  32;! 

«~.  -    •  .Innics  v  Ci^-thcr,  176 

Grace  and  Bennett  &  Drury, 

3)6 

Genrpe  v  Dcnni*.  454 

Nirlii)lls  and  Mcrrv  use  ot'  Bnrgtrs*,  5i>* 
Norfolk'*  Exr.  dt  MH  tcrt  v  Gantt,  435 
Norri-i  nml  Hammond,  etal.  Lessee,  130 
Norwootl  v  Norwood,  23» 

.•     i.  'g  Lessee  a/kiOwIng*^  96 


CASES  REPORTED. 


IX. 


O. 

Oden  and  The  State,          108  (note.} 
O'Donncll  and  Hughes,  324 

Owin^a  v  JNorwood's  Lessee,  % 

P. 

Parks  &  Hunt  v  Gist,  et  al.  493 

Parsons  and  Pollitt,  61 

Partridge's  Adm'x.  v  Partridge's  Adm'x. 

63 
Patten  &  Stewart  and  Allen, 

258  C  note.  } 

Poe  v  Comvay's  Adm'r.  307 

Pollitt  v  Parsons,  61 

R. 

Ratrie  v  Sanders,  32-4 

Jleeves  and  Muclcl,  368 

Kcinicker  v  Smith,  421 

Uidsdale,  et  al.  and  Grant,  '  136 
Kinggold,  et  al.  Lessee  and  Cheney,  87 
Itizcr  and  Tomlinson,  444 

Kobinett,  et  al.  and  Dannison,  £  5 

Kobinson,  et  al.  and  Amos,  321 

lloclie  v  jolinson.  37  (~ni.de.} 

Kutter  v  Blake,  353 

S. 

Sanders  and  Ratrie,  327 

Sappinglun  and  Hammond,  4-16 

Saundcrs,  et  ux,  v  Simpson,  et  ux.     81 

-  —  and  Siiapuou,  et  ux.  Lessee, 

bit  (~iwte.  ) 

Selhy  and  Gunby,          •  244 

Siiecley  v  Biggs,  363 

Shorter  v  Bosvvell,  359 

Simpson,  et  ux.  end  Saundars,  et  ux.    bl 

-  -'  Lessee  v  Sounders, 

o2  C?iofc.J 

Singery  and  Boreing's  Lessee,  455 

-  v  Attorney  Cjcneral,  487 
Slade,  et  ux.  and  Morg-un,  33 

and  Wilson's  Ex.'rs.      2s  I 


Smith  and  Iteinicker, 

-  ,  et  al.  v  Smith,  et  al.  314 

-  -  -  v  The  State,  471 


Smith  &  Buchanan  v  Gorton,  367 

; — 's  Lessee  and  M'Elderry,          72 

— «         £-;  Martin  v  Gunby,  et  al.  Les- 


see, 

S  tailings  and  Weems, 
State  (The)  and  Baker, 
-.  v  Oden,  - 

•  i    •         and  Burke, 

and  Smith,  et  al. 


365 


471 


Stewart  &.  Patten  and  Allen, 

258  fnote.J 

Stump,  et  al.  and  Hopkins,  301 

Swan's  Adm'x.  and  Al'Coy,  Gam.  of 

Kinjjla,  3*4 

T. 

Taylor  and  Bryden,  296 

Terrier's  Ex'r.-v  Terrier,  191 

Thomas  v  Thomas,  506 
Thompson's  Ex'x.  and  Emory's  Adm'r. 

D.B.  N.  244 

Tolson's  Lessee  v  Lanham,  174 

Tomlinson  v  Kizer,  444 


346 


w. 

Wagner  v  M'Donald, 

Walker's  Ex'r.  &.c. 

Wulsh  and  Uavis,  et  ux.  329 

Wartield  and  Hammond,  et  al.  Lessee, 

.       151 
Weems  v  Stallings,  365 

-  au^C  he  \v's  Lessee,  \~j(nole.J 
West  v  Jarrett,  472 
Williams  v  Hodgson,  *?4 
Wilson  and  Louderman,  Garn.  of  Har- 

rison,  379 

-  's  Ex'rs.  v  Sliide,  et  ux.  281 

-  ,  et  al.  and  Davis,  3V5 
Winchester,  et  al.  v  Brooke, 
W'ingate  v  Dale,  76 
Wood,  et  ux.  and  Gray  &  Biddle,  328 
Worthington,  et  al.  v  Bicknell,  58 


Y. 

Young1  and  Keefer, 
.....  •  -'i  Lessee  and  Laidler,  69 


CASES     ' 

AftGUED  AND  DETERMINED 


IN   THE 


MARYLAND. 


COURT  OF  APPEALS,  JUNE  TERM,  1806. 

WINCHESTER,  et  al.  vs.  BROOKE. 
APPEAL  from  a  decree  of  the  Court  of  Chancery.     The  „  s-  "•_">ld  an^ 

J  traim*  rred     to   E 

bill,  filed  by  the  present  appellee,  stated  that  Brooke,  the  jj|;I^0,tjj!£e\n0,J' 
complainant,  being  possessed  of  and  entitled  to  80  shares  J^efo^s  "^ 
ef  stock  in  the  Bank  of  Columbia,  and  being  desirous  of  s^U^J^nsou 
disposing  thereof,  did,  in  May  1795,  make  application  to  [ewd  •"'hi.^rol 
Solomon,  one  of  the  defendants,  who  at  that  time  acted  as  K»"L  'beS'^f 
broker  in  Baltimore,  to  sell  them  for  him.  That  Solomon  trustees'  »"H  the 
informed  Brooke  he  had  a  commission  to  purchase  shares  ed'th.  proceed*, 
in  the  Bank  of  Columbia  for  a  gentleman  in  Philadelphia,  SB*  again*  «  s^ 

.     ,.  _.  »nd    the   trustees, 

and  that  he  would,  and  did  purchase  the  shares  of  Brooke,  claiming    to    be 

p»id  the  nott'j  out 

for  which  Solomon  agreed  to  give,  and  did  give  to  him,  his  »f^?  jm.ce-.',  Of 

~  th.    sale     of    the 

promissory  notes  for  82424,  the  one  half  payable    in  26  st<>t<k-  •"  p«-fer- 

*  •  ence  (o  the  other 

days,  and  the  other  half  payable  in  28  days,  and  the  shares  ^f''he"'wajeenot 
were  transferred  by  Brooke  to  Solomon.  That  Solomon,  p^'fi-.elice^  *uth 
in  4  or  5  days  after  the  date  of  the  notes,  became  bank-  ^Vu'c^med*" 
rupt,  and  on  the  18th  of  May  1795,  made  and  executed  a  J£ $ '  JLjT*; 
deed  of  trust  to  Winchester,  &c.  the  other  defendants,  of  £"L%,th"  ^ 
his  effects  and  property,  in  trust,  to  be  distributed  among  cred?tone'ewh"tc 
his  creditors.  That  under  and  in  virtue  of  the  assign-  an<im' ;*orw«™»i«> 

.•  .  .._..       ,  011-  ii         r>f\  ''""  amiHiiit  of  che 

ment,  the  assignees,  IFinchester,  &c.   lay  claim  to  the  80  state  »i.<i  claim* 

shares,    (Solomon  not  having  disposed    thereof  for  a  fair  l«°t"  'hoaw  the  pro- 
portion \vhic 
-creditor)  claiming  the  preference,  a  entitled  to,  in  cara  he  bad  no  right  to  a  preference. 

VOL.    II.  1 


\   HIK  K.i  RTOF  A1VI.  Nl.~ 

;,n.t  u    whatever  before 

1 — 1  H  Udure,)  they  alleging  that  the  -  r  the  nett  pro 

•  be  applied  equally  among  all  the  cre- 
ditors of  Solotntm;  alt)'.'  h  that  'ie  aatk 
an  cyuilut/lr  /,  i  hereof,  i» 
prel'i  -'her  of  the  creditor*  of  Solomon,  the 
share*  having  been  a  fnntl  created  on  the  credit  of  the  notes, 
and  not  1  1  to  a  purchaser  for  a  ra 
luable  consideration,  without  notice  of  Mich  n]uita/>le  lien. 
That  Jirooke  hath  applied  to  the  assignees,  Jllnchester,  &c. 
who  refuse  to  pay  him  the  amount  of  the  shares,  or  the 
talue  thermf.  allying;  that  lirooke  hath  not  any  preference 
to  the  other  creditors.  Prayer,  that  the  defendants  be 
coiiipiTu-d  to  pay  to  the  complainant  the  said  shares,  or 
the  value  thereof,  in  preference  of  tin:  other  ireditoi-  it 
Solomon,  and  true  and  perfect  answers  make,  &c.  Also  to 
uit  with  ami  pay  to  the  complainant  the  >aid  -hares, 
or  the  Talue  ami  nett  proceeds  thereof,  in  satisfaction  of 
1  that  the  complainant  may  ha\e  such  other 
lemedy  in  t!..-  j.reini-.--  u*  i!ie  nature  of  his  case  doth  ov 
may  require,  &.c. 

The  antu'er  of  ff  inche-iter,  S>ic.  so  far  as  'm  material, 
stated,  that  when  Solomon  executed  the  deed  of  trust  to 
tin-in,  In-  v.a^  in-  ilvent,  a.nl  owed  large  sums  of  money  to 
several  persons,  far  exceeding  the  value  of  all  the  property 
and  effects  which  he  was  interested  in,  or  had  any  title  to. 
That  these  defendants  had  no  notice,  ;it  the  execution  of 
the  deed,  that  .So/wnon  was  indebted  to  the  complainant, 
or  any  other  person,  for  the  80- shares.  Th.it  the^e  defen- 
dants, ;ill  ol  whom  are  the  creditors  of  .Wo»7o;i,  did,  in 
July  1799,  sell  the  shar  1.1.  That  they  are  will- 

ing to  pay  to  the  complainant  his  proportion    ol  all  i, 
vhirh  they    received  in  virtue  of  the    deed,    anil  have    al- 
ways  been  willing    to  pay  the  same;  but    the  complainant 
has  refused  to  mAe  a'i%  ajiplication  therefor.      The\ 
that  the  complainant  lias  no  lien,  either  equitable  or 
on  the  shares,  or  the  mi>ne\  aii-iiii;  from  the  sale-,  then-of, 
for  the  payment  of  the  notes,  as  the  share-*    uei,  |.'<rally 
transferred    to  Solomon,   antl  by  him    to  these,  defendant-. 
They  say,  that  they  have  been  informed    by  Solomon,  anfl 
believe  the  fact  to  be,  that  Solomon  purchased   the   bhaie«- 
on  his  account,  and  fur  his  OWR  benefit  uutl  use. 


OF  MARYLAND.  3 

The  answer  of  Solomon  is  similar  to  the  preceding  an-  1806. 
swer.  That  at  the  time  he  executed  the  deed  of  trust,  he 
was  indebted  to  a  number  of  persons  far  exceeding  the  va- 
lue of  the  property  and  effects  to  which  he  was  entitled. 
That  he  did  not  inform  the  trustees,  at  the  time  he  execut- 
ed the  deed,  or  at  any  time  before,  that  he  had  not  paid 
the  complainant  for  the  80  shares.  That  after  the  execu- 
tion of  the  deed  he  did  not  interfere  in  the  administration. 
«f  his  effects,  but  the  same,  since  that  period,  has  been  un- 
der the  entire  and  exclusive  control  of  the  trustees.  That 
an  the  18th  of  May  1795,  and  after  the  execution  of  the 
deed,  he  was  arrested  at  the  suit  of  some  of  his  creditors, 
and  confined  in  gaol  in  BaltimQrc;  and  that  on  the  suc- 
ceeding day  the  certificate  of  the  transfer  of  the  80 
shares  was  received  by  the  trustees.  He  positively  denies 
.be  ever  told  the  complainant  that  he  had  a  commission  to 
purchase  shares  in  the  Bank  of  Columbia,  or  in  any  other 
bank,  for  a  gentleman  in  Philadelphia,  or  any  other  place 
whatever,  or  that  he  acted  as  a  broker  in  making  the  con- 
Iract  with  the  complainant;  but  he  expressly  says,  that  he 
purchased  the  shares  on  his  own  account,  and  for  his  own 
use  and  benefit.  That  the  complainant,  about  18  montlw 
after  the  purchase  of  the  shares,  applied  to  this  defendant 
to  sign  an  instrument  of  writing,  stating  that  he  had  pur- 
chased the  shares  on  commission,  which  he  refused  to  do. 

Testimony.  That  the  trustees  of  Solomon  sold  at  auc- 
tion 80  shares  in  the  Bank  of  Columbia,  to  John  Mun- 
nickuysen,  on  the  22d  of  July  1799,  for  S2480,  which,  af- 
ter deducting  duties  and  commission,  amounted  to  Jg2413. 
That  Charles  £owndes,  in  May  or  June  1799,  requested 
Munnicjiuysen  to  purchase  for  him  80  shares  in  the  Bank 
ef  Columbia,  who  purchased  the  same  for  him  for  31  dol- 
lars a  share,  amounting  to  S2480.  That  the  shares  had 
been  previously  held  by  Lowndes  in  trust  for  the  trustees 
ef  Solomon.  That  the  dividends  had  been  paid  to  the 
trustees.  That  after  the  sale  to  Munnickuysert,  for  the  be- 
nefit of  Lowndes,  the  shares  were  transferred  to  Lowndea. 
By  the  Auditors  statement,  the  defendants  are  charged 
with  the  nett  amount  of  the  sales  of  the  80  shares  at 
auction,  S2413  00 

Also  with  dividends  received,  and  interest 
thereon  to  the  22d  of  July  1799,  1 184  14 

S597  14 


CAM  H  of  Al'l'KAf.- 

1806.  They  were   credited  with  Hi  dollars  paid  «n 

v— v-"-'       etch  of  the  shares,    to  complete  tin?  pay  meats 
due  to  the  bank  on  the  »har.  ilit- 

eti  with  thedivii'euda  and  interest  arising  there- 
on as  charged,  )  28 

Balance  due  to  complainant,  82697  65 

II\vsox.  (  24th   of  March   1803,)  being  of 

opinion  that  the  complainant  was  entitled  t"  p.ivmrnt  «•! 
two  note*,  given  to  him  by  the  defendant,   Solomon,  on- 
account  of  eL  -  of  (W?/;/i£iabank  stock,  tun-ler 

red  by  the  riunplainant  to  Solomon,  out  of  the  nett  pro- 
ceeds arising  from  the  sale  of  the  bank  stock,  so  far  as 
the  same  would  extend,  in  preference  to  the  other  credi  • 
tors  of  Solomon—  Decreed,  that  the  defendants,  Winches 
ttr,  &c.  pay  to  the  complainant  the  sum  of  fc2f>97  85 
cents,  the  same  being  the  amount  of  the  dividends  and 
nett  proceeds  of  three  fourth  parts  of  the  sales  of  the 
eighty  bank  shares,  according  to  the  statement  thereof  made 
by  the  auditor  of  this  court,  together  with  interest,  till 
paid,  from  the  service  of  this  decree.  That  the  coin  pi ai 
nant  and  defendants  sustain  the  costs  by  them  respectively 
expended  in  the  prosecution  and  defence  of  this  Miit. 

The  chancellor  does  not  conceive  that  interest  can  !>•• 
allowed,  as  proposed  by  the  counsel,  viz..  from  the  22d  of 
July  1799  to  the  24th  of  Man-h  1803.  If  it  were  allow- 
ed it  munt  t-ither  be  charged  to  the  trustees,  or  must  come 
out  of  the  estate  of  the  in-solvent,  to  the  prejudice  of  other 
creditors.  The  latter  would  be  surely  unreasonable, 

not  appear  that    tin-  trustees  h;ne    i<< 
interest.     From  this  decree  the  defendants,   I  fine/tester, 
&c.  appealed  to  thin  court. 

The  cause  was  argued  t)fio:  C'h.  J.  TII-.I! 

POLK,  Bicii  \N  \\.  .Ni'  ''\sii,J. 

1  and  relied  on  77//is  vt. 

Huntl,  3  '/'   /•'.  464.    /.i'.'.'-'irron  vs.  Mason,  '2  T.  /, 
Barnes  vt.   Frttlmul,  T>    '/'.  II.   80.    Green  vs.   farmer,   4 
//in-,-.  :  M  ».  /:.,).',rte  Ockenden,  1  Jitk.  235.  Polluj- 
Moore,  Utk.  -i::,.    Walker  vt.  Pretwick,*  Vet.  622.  2 
AW/,   fib.  0-2,  /;/.   1,   '^6.  Brennan  vs.  Current.    ' 
i.   Coin,   Dig.  tit.  Agreement,   (B.  3.)  Bon 


OF  MARYLAND. 

£ent,9.  fern.  281.  Fawellvs.  Htdis,  dmbl.  724.   Grimes       180G. 

is.  French,  2  Atk.  141;  awl   Wttlpole  vs.   Orford,  3 

416. 

Shaaff,  for  the  appellee,  referred  to  Ridgdy  vs.  Carey, 
4  Jfarr.  $•  bPlltn.  167.  He  contended  that  the  decree  of 
the  chancellor  might  be  supported  by  the  allegations  and 
proof,  independently  of  the  principle  of  lien,  as  it  did  not 
appear  that  any  person,  but  the  complainant,  had  a  right 
to  the  proceeds  arising  from  the  sale  of  the  stock. 

TII.GHMAN,  J.  It  is  inconceivable  how  the  chancellor 
could  take  the  case  up  on  the  ground  of  preference. 

THE  COURT  OF  APPEALS  were  about  to  affirm  the  decree 
of  the  court  of  chancery,  inasmuch  as  it  did  not  appear 
by  the  record  that  there  were  any  other  creditors  but  the 
complainant,  whose  claims  had  been  proved  and  were  al- 
lowed; nor  had  the  trustees  set  forth  the  amount  of  the  es- 
tate of  Solomon,  and  the  amount  of  the  claims  against  the 
•state,  so  as  to  ghow  the  proportion  which  the  complainant 
was  entitled  to,  in  case  he  was  not  entitled  to  a  prefer- 
ence; but  the  counsel  for  the  appellants 

DISMISSED  THE  APPEAL. 


BAKER  vs.  THE  STATE.  JUNE. 

ERROR  to  Charles  county  court  in  a  criminal  prosecu-    A .Far(- Table »rt 

up  in  a  hou«',  noc 

tion.  The  indictment  stated,  that  Baker,  (the  piaintift'  in  jj,,^"™ K^°i^i 
error,)  on  the  21st  of  March  1803,  "unlawfully  did  set  up^jj^!^^ 
a  Faro  7'able,  for  the  purpose  of  gaming,  in  a  house  in  ^'"fe^ce  i*n!}°r 
Charles  Town,  in  the  county  aforesaid,  by  the  said  John  $?.  no!  which™!* 
Bckf.r  for  that  purpose  rented,  against  the  form  of  the  act  n)CtTai'ac"'no  L*~. 
of  assembly  in  that  case  made  and  provided,  and  against  k. pt  or'mamtam- 
the  peace,  dignity,  and  government  of  the  state."  Not  nV-houwf  out! 
Guilty  was  pleaded.  At  the  trial  the  attorney  for  the  state,  i'i!iliiTtiUblypan>*  w" 

...  .  .  vi-rn  ketper,     re> 

to  support  and  maintain  the  prosecution,  gave  m  evidence  taiie.,"  &c. 

Whether  or  not 

to  the  inry  that  Hotter,  the  travel  ser,  was  a  resident  of  the  the  court  can  re- 

~      •  fine  lo  permit  the 

city  of  Baltimore,  and  on  the  21st  of  March  1803.  came  covmel  "V8  cr'mi- 

nal  case    from  »r- 

from  the  city  of  Baltimore  to  Port-Tobacco,  in  Charles  ^^^^^ 
county,  where  he  rented  a  house  of  a  certain  /.  E.  Ford,  ^^Tf'^embf,11, 
for  the  term  of  fifteen  days,  and  that  the  traverser  did,  on  b«entca,i,<d"l'!l,a,a 
the  day  and  year  aforesaid,  set  up  a  Faro  Bank,  and  played  !"0f,lVtoaiih"sl"ci" 
at  Faro  in  the  house  rented  by  him  of  Ford.  The  traverser  2"enr' 


ES  IN  HIE  COURT  OF  APPEALS 

1806.       gave  in  evidence  to  the  jury,  that  the  place  aforesaid  wa# 
i  dweliing-hoateocevpted  by  any  tavern-keeper,  n 

ol  \urie.  -|iinui<>u-,  lic|ui>r-,  lu-cr  or  cider;  and  that  it  was 
not  an  out-house  occupied  l>\  any  tavern-keeper,  retailer 
uf  v  'ions  liquors,  beer  or  cider,  or  place  occu- 

pied by  any  tavern-keeper,  retailer  of  Mine,  spirituous  li- 
quors, beer  "i  cider.  The  attorney  for  the  state  then  pray- 
»-d  the  court  to  direct  and  instruct  the  jury,  that  if  they 
find  from  the  «  hat  linker  did  set  up  a  Faro  TalnV 

and  play  at  Faro  in  the  house  stated  in  the  indictment,  ther 
ought  to  find  a  verdict  for  the  state.  To  which  praver  the 
traverser,  by  his  counsel  ohjected,  and  contended  before 
the  court  that  he  was  no:  guilty  of  any  oflcnce  against  the 
act  of  assembly,  entitled,  ".#n  act  to  prevent 
gaming,"  unless  the  jury  should  find  from  the  evidence. 
that  the  place  aforesaid  was  a  dwelling-house  occupied  by  * 

n-keeper,  retailer  of  wine,  spirituous  liquors,  beer  or 
cider,  or  an  out-house  occupied  by  a  tavern-keeper,  retail- 
er  of  wine,  spirituous  liquors,  beer  or  cider,  or  place  oc- 
cupied by  a  tavern-keeper,  retailer  of  wine,  spirituous  li- 
quor*, beer  or  cider.  But  the  court,  (Gantt,  t'h.  J.)  in- 
structed and  directed  the  jury,  agreeably  to  the  prayer  of 
the  attorney  for  the  state,  and  refused  to  permit  the  conn- 
M-l  for  the  traverser  to  ar^ue  to  the  jury  on  the  »  'instruc- 
tion of  the  act  of  assembly  as  contended  for  by  him  in  his 
objection  to  the  prayer  of  the  prosecutor.  Whereupon  tin 
traverser,  by  his  counsel,  prayed  leave  to  except  to  the 
opinion  and  direction  of  the  court  to  the  jury,  and  also  to 
the  opinion  of  the  court,  in  refusing  to  permit  him  by  his 
counsel  to  argue  on  the  construction  of  the  act  of  assem- 
bly, and  that  the  court  would  sign  and  seal  thi-  his  bill  ol 
exce!  •  d'u  t  uuilry,  and  judgment  that  the  tra- 

be  fund,  and  forfeit  and  pay  to  the  state  the  sum  of 

.  unent  money  for  the  offence  aforesaid,  &c.     To  re 
Terse  which  ji:  the  traverser  brought  the  present 

writ  of  error. 

The  cause  was  argued  In  Tore  CHASE,  Ch.J.   TILGHMAK, 
,  and  NICHOLSON,  J. 


T.  Buchanan,  for  the  plaintiff  in  error,  referred  to  the 
act  of  1797,  ch.  110.  The  second  section  of  which  de- 
clares tl  at  "no  E  O,  A  B  C,  L  8  D,  or  Faro  Table,  or  other 
device,  except  billiard  tables,  for  the  purpose  of  gaming 


OF  MARYLAND. 

for  money,  shall  be  set  up,  kept  or  maintained,  in  any  1806. 
dwelling  house,  out-house,  or  place  occupied  by  any  ta- 
vern-keeper, retailer  of  wine,  spirituous  liquors,  beer  or 
cider,  whether  such  person  have  a  licence  or  not,  on  pain 
of  forfeiting  every  such  E  O,  ABC,  LS  D  table,  or 
other  device,  and  of  forfeiting,  moreover,  for  every  offence, 
the  sum  of  fifty  pounds  current  money,  upon  conviction 
thereof  by  indictment,"  &c.  And  the  third  section  declares, 
"that  if  any  tavern-keeper  shall  permit  any  E  O,  A  B  C, 
LSD,  or  Faro  Table,  or  other  device,  to  be  set  up,  kept 
or  played,  in  his  or  her  tavern,  out-house,  or  place  apper- 
taining or  near  to  the  same,  hi»  or  her  licence,  upon  con- 
viction thereof,  shall  be  void,  to  all  intents  and  purposes." 
He  also  referred  to  the  act  of  1803,  ch.  75,  to  shew  the 
construction  given  by  the  legislature  to  the  act  of  1797. 
ch.  110. 

Scott,  for  the  State. 

CHASE,  Ch.  J.  delivered  the  opinion  of  the  court,  de- 
claring that  the  act  of  1797,  ch.  110,  only  applied  to  dwel- 
ling-houses, out-houses,  and  places  occupied  by  tavern- 
keepers,  &c.  No  opinion  was  given  as  to  the  question 
whether  or  not  the  court  below  were  right  in  refusing  to 
permit  the  counsel  for  the  traverser  to  argue  to  the  jury 
upon  the  construction  which  they  had  given  to  the  act  of 
assembly,  in  their  direction  to  the  jury,  on  the  prayer 
which  was  made  by  counsel.  The  chief  judge  said  he  was 
prepared  to  give  his  opinion  that  the  counsel  had  no  such 
right,  after  he  had  called  upon  the  court  to  give  a  con- 
struction to  the  act,  and  the  court  had  done  ao. 

JUDGMENT    REVERSED. 


BEATTY'S  Adm'rs.  vs.  CHAPLINE.  DECEMBER. 

IN  this  case  a  writ  of  fieri  facias  issued  on  the  7th  of,  After.  a  /"* 

''  J  facia*    has     been 

April  1806,  on  a  judgment  rendered  in  the  late  general  )*}£'  *"d  J1,^0™ 
court,  at  October  term  1805,  returnable  to  this  court  in  ^dTrr'a^rit"^ 
June  last.  At  which  time  the  sheriff,  to  whom  the  writ  fj££  ({£{fo^lth 
was  directed  and  delivered,  returned  the  same  to  this  ^  notPop««tc 
court,  endorsed  thereon,  that  he  did,  on  the  16th  of  April  p^oce^tWlliV.dc! 
1806,  lay  the  same  on  the  goods  and  lands  of  the  defen- l  e 
flant,  but  that  he  was  prevented  frem  making  sale  of  the 


CASKS  IN  THE  CeivRT  OF  APPEAL? 

fS06.        property  by  the  production   of  a  n  <:'ift>  ate  that  a  \M 

error  had  issued,  (bond  with  security  having  been  first 
given  and  appnm-d.)  on  the  21st  of  April  1806.  A  mo- 
tion was  made  on  the  part  of  the  plaintiffs  for  a  writ  of 
venditioni  cxponeu,  whicli  motion  \\a«  (ontimn-d  until  this 
term,  when  it  \\a>  argued  In-fore  '  ii.  J.  Ti 

WAN,  BUCHANAN,  NICHOI.SO  ,  VTT,  J. 

Mason,  for  the  motion,  contended,  lh.it  a  writ  of  error 
WM  no  rttpfrxedeas  to  a  writ  of  fieri  farina  which  had  beei* 
laid  previous  to  the  t  the  writ  of  error;  that  an 

I  ,tn  entire  thing,  and  when  once  begun,  must 
be  completed.     In  his  aignment  he  cited  the  act  of  : 
•  h.4.  Charier  vs.  Petrr,  Cm.  f.'li:.™T.    M»>r, 
flyer,  98,  99.     Sure  r.t.  Sheffnn.  -:  Roll.  .1hr.  4M1,  pi.  5. 
Jbib  pi.  6.   Tocock  vs.  fronyman,  Yilr.  f>.  .'1z'cx  rs.  Len- 
Ihall,  :•>   fCr'ili.  308.  Meriton  vs.   Sttvens*    //"<"//••  >'v  ]}rp. 
.  /ii'htrodc,  1  ^.    Thr   (J»rrn  vs. 

•.)'V),  S.   ('.    I\rliin9  VS. 

Uarton,  1  |   vg. 

en,  1  Sal;  ffni/m.  \>  .  Sjmra- 

ivay  vs.  Roftrti  12  Mod.  501.  Bae.  Jh.  tit.  Error,  (H.) 
ttib.  tit.  Superttdem,  (G.)  (D.  5.;(E.)  (D.  4.)  Cooper  vi. 
Chitty*  \  W.  Blk.  Rep.  67.  1  Burr.  21,  8.  C.  Korke  rn. 
flayrcil,  4  7\  R.  411.  Sumpsvti  vs.  K  /.Y/tf.  439. 

Ciilb.  on  Execution  .  Imp.  Sheriff,  154,  1  Jo;  and 

the  ^<rf.  5  G«o.  //,  cA.  r. 

Marlin,  against  the  motion,  relied  on  The  Slate  vt. 
Page,  tt  nl.  1  J/itrr.  <v  ./oA/j.t.  47  acts  of  ! 

r/i.  4,  and  1799,  ffi.  79.  v.  lo.  He  referred  to  and  com- 
mented on  the  cases,  cited  in  favour  of  the  motion. 

::4.     Tht   Comjtlctr   .S7. 
hunt,  2  7'.  /.'.    i  ;.    The  actn 

i.f  1715,  cA.  :>.>,  ».  4;  \r:  t,  '//.  1-2;  1791,  r/i.  07,  5.  4.  3 
Dnnvtr*,  S2O,  pi.  4.  A«vff/  vs.  Perry,  5  T.  P.  669. 
Mtafher  9t.  Vamlyrk,  Z  Bos.  fy  Pull.  ."Co;  and  7/«7«fon 
i-i.  Clarke,  Bnnifx, 


C>  Mended  that  a  writ  of  error,  witU 

bond  filetl  ac.-ordinj^   to  met  of  assemb!  sn~vrr  of 

good*  on  *  fieri  fmi,,^  but  hefore  sale,  is  no  superseded*; 
aad  two  potitivns  arc  laid  down  in  support  of  this  doc  trim  :— 


OF  MARYLAND.  9 

First)  That  an  execution  is  an  entire  thing,  and  when       1806. 
once  begun  cannot  be  stopped.  V-X>~LJ' 

Second,  That  the  property  is  changed  or  altered  by  the       Chav'-n, 
seizure  of  goods  on  a  fieri  facias. 

On  these  two  positions  the  argument  rests. 

1.  As  to  the  first  position — In  a  ca.  sa.  I  shall  admit  it, 
because  there  is  but  one  single  act  to  be  done,  and  as  soon 
as  that  is  done,  the  execution  is  completed  and  executed — 
the  arrest  of  the  defendant,  who  is  detained  in  custody  to 
compel  payment  of  the  money;  and  if  the  super sedeas  comes 
ttfter  the  arrest,  it  is  too  late,  the  execution  being  executed. 

As  to  a  fieri  facias  the  position  is  not  supportable  in  the 
extent  contended  for,  but  is  subject  to  modification. 

A.  fieri  facias  begun  by  one  sheriff  must  be  finished  by 
him  or  his  executors;  if  out  of  office,  he  shall  be  compel- 
led by  a  distringas  to  sell  the  goods,  and  pay  over  the  mo- 
ney to  the  plaintiff,  and  so  of  his  executors. 

After  seizure  of  goods  on  &  fieri  facias,  the  death  of  the 
plaintiff  will  not  prevent  the  sheriff 's  going  on  with  the 
execution;  but  he  may  sell  the  goods,  and  bring  the  money 
into  court,  which  will  be  paid  over  to  the  executor.  The 
death  of  the  defendant  after  the  seizure,  will  not  prevent 
the  sheriff  from  going  on  with  the  execution.  These  are 
the  only  instances  in  which  an  execution  (a  fieri  facias)  is 
an  entire  thing,  according  to  the  decisions  of  the  courts. 

There  are  four  essential  acts  necessary  to  be  done  to 
perfect  the  execution  of  a  fieri  facias,  in  order  to  divest 
the  property  of  personal  chattels  out  of  the  defendant,  and 
transfer  them  to  another.  1. -Seizure  of  the  goods  by  the 
sheriff.  2.  The  appraisement.  3.  Public  notice  of  the  sale. 
4.  The  sale  of  the  goods  by  the  sheriff  after  public  no- 
tice. 

In  the  case  of  land,  another  requisite  must  be  complied 
v.-\(\\  to  vest  the  legal  estate  in  the  vendee — a  deed  from 
the  sheriff  to  him. 

The  return  of  the  fieri  facias  is  necessary  for  the  pur- 
pose of  ascertaining  the  sum  made  by  the  sale  of  the  goods, 
to  lay  the  foundation  for  a  second  fieri  facias,  in  case  the 
sum  made  should  be  incompetent  to  the  discharge  of  the 
debt  and  costs;  or  if  there  was  a  surplus  in  the  hands  of  the 
sheriff,  after  payment  of  the  debt  and  costs,  to  enable  the 
defendant  to  proceed  against  the  sheriff',  in  a  summary  way. 
to  compel  payment  of  the  surplus  to  him. 

VOL.    II.  2 


i0  c  \-!>  IN    niE  COl'RT  OK  AIM'FALS 

IB  \-  in  lli.-  In-  ./'in-  of  the  -ood»  by  the  sheriff. 

il    prnpertv   in 

•    tiii'in.  siibjoi  t  to  the    execution,  ami 
( an    maintain    l  r    tro\er    for    them  against   wrons; 

disposed  of  by  the 

i.t\\. 

Tin-  -.virral  property  is  not  in  tin1  sheritY,  1 
a   special    or   <|ua!i!ied   pn-j-.ertv  in  contradistinction  to  the 

•t  retain  thorn  at  an  appraised 
value  and  pay  the  inon-  ].laintilV. 

Tin1  Amoral  proper!  v  i-.  not  in  tin1  plain  till*.  because  the 
:  deliver  them  to  him  at  :in  appraised  vahu1  in 
debt      JT«    q«  SStion    occur-.    v.lnMv  is 
the  irciuM.il  i  It  is   in  tin-  ddi-mlani,  or  in  nt>ci/- 

inplation  or  intondment  of  law,  and  will  vest 
in  future-  \\hrro  tin-  l>i\v  dii> 

It    is    said    that    by    tin1    sri/.uro  oft1!  »u  a  fieri 

fit  \  admit    the   jiosition 

1.1  <>n<'  restriction,  if  not  niore.     I  If    i-  discharged 

'lit'  of  the   gO!)(K    -r'r/.ed.       How 

i^  that  \alut1  lo  !»f  a>,"i  taincd,  and  \\hat  is  the  true  and 
li-^al  criterion  of  it:  Not  the  appraisement,  but  the  price 
obtained  on  a  public  >:de: — and  th--  di-rharne  of  the  de- 
liMidan;  i^  only  H  that  amount,  which  cannot  be  ascertain- 
ed but  by  the  sale  and  the  ivttirn  of  the  fieri  f>i> '<>-'.  To 

ilai'ulate  it npp-i-e  a  fieri  facias   issues  for  S500,  and 

the  shcrill'  ri't.ini-.  laid  as  per   schedule,   and   made  to  the. 
amount  of   Sl"((,  what  is  the  di -charge   of  the   defend::;. 
Ordv  f>fit  tti/tf^  tho  S'lli'.  and  this  ret-,ir:i  lavs  the  fninda- 

•!i  for  a  «e<  -idue  of  the 

debt. 

An  soon  as  the  sale  i»  mil-,  tho  general  property,  which 
wa-  i  I -i-»i  or  in  it'ii  i/u,irr.    i-    iran»fi'rred 

to  th'  >;i  of  la\v,  and  In'  becomes  H 

If  on  a  writ  <if  error  t'h  -it    >hoidd    !je    re\er-eil 

afl--  will  not  be  divested  out  of 

the  vendee,  and  revst  in  the  defendant  belo-.v.  bc.an-e  the 
n  t!ie  \rndei-  liv  operation  of  lau.  accoid 
•din-  in  the  administration 

of  justice.      Hit  if  t  ..•  j'id-ment  should  i.  I.  afi.-i 

,   the  general  j.rojierlv,  if  in  iitxi/- 
ancc  by  the  seizure,  will  revert  to  tliL-oii-inal  dcf.Miduutby 


OF  MARYtAND.  i  t 

operation  of  law,  and  he  is  entitled  to  a  writ  of  restitution  1806. 
to  obtain  the  possession.  So  that  it  is  plain  the  property  L^J~' 
is  not  charmed  bv  the  seizure,  but  by  the  sale. 

Chaplm? 

It  is  said  that,  if  goods  are  taken  on  a  fieri  fac ios  the 
defendant  is  discharged,  and  the  plaintiff  cannot  issue 
another  execution,  or  bring  an  action  of  debt  on  the  judg- 
ment. I  have  already  pointed  out  in  vliat  manner  he  is 
discharged,  and  shall  admit  the  plaintiff'  cannot  sue  out 
another  execution,  or  bring  an  action  on  the  judgment, 
pending  the  fieri  facias;  and  the  reason  is  obvious,  because 
it  is  presumed  the  sheriff  has  already  taken  goods  enough 
to  satisfy  the  debt,  and  it  cannot  be  known  but  by  the  sale 
whether  the  goods  taken  are  sufficient  or  not  to  discharge 
the  debt;  and  therefore,  during  the  pendency  of  the  fieri 
facias,  he  is  precluded  from  proceeding  by  another  execu- 
tion, or  by  action  of  debt  on  the  judgment. 

It  is  also  said,  if  the  sheriff  takes  goods  on  a  fieri  facias, 
and  they  are  rescued  or  lost,  the  sheriff  is  responsible,  and 
from  thence  it  is  inferred  the  defendant  is  discharged.  I 
admit  the  position,  but  not  the  inference  generally,  because 
I  have  already  stated  my  ideas  of  the  nature  of  the  dis- 
charge. The  sheriff  is  answerable,  because  in  the  first  in- 
stance put,  he  can  summon  the  posse  comilatus  to  aid  him 
against  the  rescuers,  and  can  bring  suit  against  them.  In 
the  second,  il  they  are  lost,  it  is  supposed  to  be  owing  to 
his  negligence,  and  therefore  he  is  answerable,  and  the  re- 
covery against  the  sheriff  would  be  the  measure  of  the  de- 
fendant's discharge. 

But  suppose  the  sheriff  takes  a  negro  on  a  fieri  facias, 
or  goods, 'and  the  negro  dies  the  next  day,  or  the  goods  are 
consumed  in  the  sheriff's  house,  with  his  own  goods,  before 
he  has  time  to  sell  them,  would  the  sheriff  be  liable  with- 
out any  fault  or  negligence  imputable  to  him?  If  not,  this 
would  constitute  another  limitation  on  the  position  that  the 
defendant  is  discharged  by  the  seizure  on  a  fieri  facias. 

2.  Having  premised  thus  much,  I  will  now  refer  to  the 
decisions  which  I  consider  as  supporting  the  doctrine,  that 
there  is  no  change  of  the  property  of  the  goods  taken  on  a 
fieri  facias  until  the  sale  is  made  by  the  sheriff,  and  that 
t\\e  fieri  facias,  until  the  sale  is  made,  is  not  executed,  and 
consequently  that  a  writ  of  error  is  a  svpcrsedeas  at  any 
time  before  the  sale. 


18  IN  Til!  I    OK  APPEALS 

1806.  If  sheriff  It  ..ml    rotm 

hand  for  want  of  I>U..T-.  the  piopem  i-  in  the  defendant 

9,  41,  (G  James  I.)     A  writ  of  error  i^   a 
if  the  sheriff  n  .  <-i\c,  n  be  I'.. re  -.il.-.     bflCMM    tin-  pi<  ; 
w  not  altered.     Jfoll.  J1>.  491,  }>l.  5.    (17  Jamri].) 
case   was    decided  fourteen  'Me  of  tin-. 

third  of  Jaiinr,  requiring  bail.  ••  second  case  which 

vras  derided.     Th«*  . -^a-on.  I 
tiTt-d:  and  I  add,  became  tlie   rxccuti- 
before  the  sale.     The  sale  is  the  r 
execution .  us  the  value  of  the  t:<'<": 

amount  for  which  the  defendant   i^  discharir«-ii.  «h\r»t>   ilie 
property  out  of  the  defendant,  and  vesta  it  in  the  vei 
f>  AW,.  KV.J.y,/.  4,  (15   Car.  II.;      IW.  44.      i'.y  the  sciy.uru 
of  the  good»  the  owner's  property  i-  >  I,    for  the 

seizure  is  not  any  execution,  but  only  the  bojjinnins;  of  it. 
The  sheriff  after  such  se'r/.ure  ought  to  return  the  \vri' 
cuted  in  tanto,  and  cannot  by  lau  dflivei  them  in  jiais  to 
the  plaintiff".      Yil.   14.     If  the  sheriff  retu'  honu 

on  a  fieri  facias,  and  there  is  a  re*  iii^t  him  I 

(turn,  that  M-I-  no  pn  pvty  "t"  tl  .•  ';n(.(l>  in  him,  but 
they  remain  in  the  party,  and  are  liabl>  il)>r,.iipn< 

i. ion  tor  lii^  debt.      -2   I'lrn.^'^.  P.      It'  »!n-  -1^-riff  on 
a^fn'/(/('  the  good j    and  pay-    the    plaintiff  with 

his  own  proper  money,  yet  he  cannot  t  •  ds  to  hi» 

own  u-e.  fcr  the  authority    by  \\liich  l-.e  artr«l    \\a>    \nsdl 
t  Jit  goods.      Noy,l()7.     \\herc  a  \.rii  «,!"/'• 
livrred  to  the  sheriff  to-day,  and   anotl  i-ow,    and 

.    li\    nnikinii    so//  of  tlie 

goods,  such  sale  \ii''  ".«I,  and  the  \mdee  fthall  hold 

"-t  him  wlu>  first  delivered    the   \\iii  to    the 

'  .  420. 

•  //.,.  i! i.       ••;«!<•.  M.  a  /A///,  ci,. .!.    Ti,.- 

sale  is  the  execu;iui.    of  ih-  \\r"t    <.l  / 

tran-!  /'///>- 

III.)      1 
ilier  before  the  statute  of  lYj'KU.  •  >,\  rince,  i-  •   ••  j.:i 

.Is  tiltfrrtl,  but  continues  in  the  defendant  till  the. 
exec'.  /'    .  . .          i.        L 

'>le  but  n<> 

allowance  of  a  writ  of  error  is  a  >'  ,i  not    af- 

terwards.    1  Salk.  In  the  •  ,ivs. 

',  Barnes's  Nolet^    212,  a  question,  whether 


uF  MARYLAND. 

bail  perfected  (lie  goods  can   be   restored?      Vide  Merit  (M        1806, 
vs.  Stevens,  (16  Geo.  II.)   <Si/&es  ?;s.  Dawson,  (18  6'eu.  11-; 
Held,    that  if  a  defendant's  pei>on   be  iaken  by  a  ra.  sa. 
and  bail  in  error  afterwards,  the  person  shall  be  di?<  ' 

of  SL  fieri  facias,  the  proceedings  so  far  us 
the  sheriff  hath  gone  must  stand.  2  Cramp.  £J'3, 
An  el e git  executed  on  goods  only  is  not  Sijifri  fa-las,  for  a 
fori  facias  is  (-;<•«  a! >;•'  l,y  sale  by  the  sheriff;  but  the  elegit 
bv  ap|>ra'..-M'n>ent  of  the  goods  by  a  jury  and  delivery  to 
the  party.  2  Bac.  Jib.  349,  (note  b.)  According  to  the 
statute  of  frauds  and  perjuries  the  writ  of  fieri  facias,  first 
delivered  to  the  sheriff,  is  entitled  to  the  priority;  but  if 
the.  goods  are  seized  and  sold  under  the  second  fieri  facias, 
the  goods  are  protected  in  the  hands  of  the  vendee;  but  if 
before  sale  they  are  seized  under  the  first  fieri  facias,  the 
sheriff  may  and  ought  to  sell  them  on  the  first  fieri  facias, 
and  pay  the  money  to  the  plaintiff  in  that  case.  1  Term 
Reports,  729.  This  decision  contradicts  the  two  positions 
relied  on  to  prove  that  the  writ  of  error  is  no  supcrnedeas 
after  seizure,  1st.  That  the  execution  is  an  entire  thing 
and  cannot  be  stopped  or  suspended.  2d.  That  the  pro- 
perty is  changed  by  the  seizure.  In  this  case  the  goods 
\vere  ftr.it  seized  on  the  second  fie.ri  facias;  they  were  af- 
terwards seized  nnd  sold  on  the  first  Jieri  facias,  and  the 
sale  adjudged  good,  aud  the  money  paid  over  accordingly. 
Any  time  before  a  sale  the  sheriff  has  a  right  to  give  the 
preference  to  that //en*  facias  v.hich  by  law  is  entitled  to 
the  priority.  If  the  property  of  the  goods  was  divested 
cut  of  the  defendant  by  the  seizure,  on  the  second  fieri  fa- 
-heriff  could  not  have  laid  the  first  fieri  facias  on. 
them,  bcc.au.se  they  were  not  the  property  of  the  defendant; 
but  he  did  seize  them,  and  sell  them  on  the  first  fieri  faci- 
as after  the  seizure  on  the  second  fieri  facias.  Vide  the 
Rule,  and  Judge  KuUefs  opinion.  In  this  case,  Cro.  Eliz. 
597,  and  Salk.  3:22,  were  cited  and  relied  on  by  the  coun- 
-i.-l  who  contended  for  the  Rule. 

If  thijj  case  is  considered  on  the  act  of  1713,  ch.  4,  in- 
dependent  of  the  English  authorities,  I  think  it  is  plain 
the  writ  of  error  is  a  supcrscdeas  at  any  time  before  sale; 
and  that  such  exposition  is  agreeable  to  the  intention  qf 
the  legislature  and  in  furtherance  of  justice.  Jn  expound- 
ing the  act  of  1713  relating  to  appeals  and  writs  of  error, 
we  must  consider  the  evils  which  existed  before,  and  the 
remedy  provided  for  them,  and  give  such  an  exposition  to 


1-1  <   ISBSIN   niK  COURT  OF  APPEALS 

18Cf.        the    art  as  will    remove   the    c^ils   ;>.nd    advance    the  re- 
dv. 
\  urit  of  error,  before  tl.e  :u  t  oi  • 

!•»!  his  debt  by  the    de- 
cfore 

the  judgment  'I'n    reined  \   thi-   e\d.    nond, 

in    double  the  MUD    recovt-rer  ired, 

before  a  urit  ii  error  ua*a 
by  t!  'M-f  a  Mifticient  security  for  the  debt  and  da- 

•,.ent  !-liou!d  bi1  aftiriiH-d. 

In  this  planner  the  e>il   on  the  part  of  the  j-laintiff  was 
fully  rein* 

on  lite  part  c.f  tin-  defemlant  ua.^,  that  his  pcr- 
ri!'j.!it  l:c  di-iaiurd  in  pri^nii,  <n  hi-.  |n>put\  sold,  IR-- 
11  (i. old  !  lied  uhctlii-r  the  jud^inent  below 

was  erroneous  or  not.     And  further,  in  case  the  jtjd. 
was  erronnnH,  and  re\ei'M-d,  he  might  IOM-  hi-  piopt-rf%  !>v 
-.ile  of  the  >hcrifl',  arid  payment  of  the  money   to  the 
plaintiff,  if  lie  should   IM-(  OHM-   ii,»ol\fiit  before   the  juilg- 
nifii-  rsed,  or  before  the  money  could  be  re- 

If  lnT.d  i-  -jfnrn  in  the  manner  j-.re-j  rilx  -d  l»v  the   ait  i-f 
:ibly.  fin-  \\iii  !    the 

?i;iii  if  it  hail  not  ]>rc\i  i   \\ill   dr! 

I  by  the  slu-iitl'  in   the   execn- 
"f  it.  if  it  was  not  eM-nited  when  the  bond 
The.  urit  of  error  bond   Lein^  ii;  l!y    of  double 

.   \\ith    tuo   M-curities   appro\ed    b\    the 
chancellor,  was  dremed  by   the  le^i>latiire  ample   >ecurity 

ntitV, 

in  case  the  jndgment  shovld  be  affinned.     Thi-  i^  all  the 
itiflT  was  entitled  to  by  lau  :  this  is  all  he  could  ii 
:»'(|uirr.  and  for  (his  he  has  ample  security,   int!' 
dent  of  t1  .i.t'«  |ii<  | 

It  I  |.'-ii-!i;dile  nafirr.  ^ubji-ct  to  na- 

tural <!«  ra\.  the  lly    »»r  \\ea\cl,  or  la-ualtirs  ol   any    Kind, 
the  plain'.  '  IM?  injured  by  its  remaining  in  the  lus- 

tc.d\  of  tli'-  law  to  be  operated  on  according  to  the  deci- 
sion of  the  a|>;  nit;  by  uhich  it  is  to  be  a-rertain- 
c<l  whHher  the  ji:d^ment  Iwlow  i^  erroneous,  and  uh 
the  defrndarit  is  ind.-bted  to  the  plain; ift*  or  not. 

But  suppose  tin-  rourt  should   decide  the  writ  of  ei  ror  it 
no  $t'per»eil«cn  after  seizure  ef  tlie  goods  ()i  hauls,  and  the 


OF  MARYLAND.  if 

Sheriff  proceeds  to  make  sale,  and  does  sell,  and  the  me-  1806. 
ney  is  paid  over  by  the  sheriff  to  the  plaintiff,  and  after  all 
this  is  done  the  judgment  is  reversed,  and  the  plaintiff  be- 
comes insolvent,  or  he  pays  the  money  over  to  one  of  his 
creditors,  and  becomes  insolvent  before  a  recovery  over 
can  be  had,  what  is  the  situation  of  the  defendant?  He  is 
deprived  of  his  goods  and  his  land,  although  he  owed 
nothing,  and  he  is  without  remedy.  But  suppose  the 
plaintiff  does  not  become  insolvent,  the  defendant  loses 
his  land,  and  must  bring  suit  for  the  money,  which  in 
most  cases  is  not  more  than  half  the  value  of  the  land,  be- 
cause sold  at  a  sheriff's  sale  for  cash. 

It  was  the  intention  of  the  legislature  to  prevent  the  de- 
fendant's being  injured  by  a  sale  of  his  property  while  the 
writ  of  error  was  depending,  and  he  was  allowed  to  inter- 
pose his  bond,  (which  was  deemed  an  ample  security,)  to 
prevent  the  sale  of  his  property. 

No  injury  can  be  done  the  plaintiff  by  deciding  that  the 
writ  of  error  is  a  supersedeas  at  any  time  before  sale,  be- 
cause lie  bas  ample  security  for  his  debt  and  costs,  and  he 
will  be  fully  compensated  for  the  detention  of  the  debt  by 
the  damages  awarded  by  the  court  of  appeals.  But  by  a 
contrary  decision,  a  defendant  may  be  deprived  of  his 
goods  or  lands,  or  both,  and  be  without  remedy,  if  the 
judgment  should  be  reversed.  The  former  corresponds 
with  a  sound  and  liberal  exposition  of  the  act,  is  agreeable 
to  the -intent  ion  of  the  legislature,  and  will  conduce  to  the 
advancement  of  justice,  and  therefore  ought  to  be  adopted. 

If  it  should  be  determined  that  the  writ  of  error  is  no 
superseded-?  after  seizure  and  before  sale,  the  plaintiff  will 
lose  the  benefit  of  the  writ  of  error  bond,  and  cannot  re- 
port to  it  in  case  there  should  not  be  enough  levied  to  sa- 
tisfy the  debt,  damages  and  costs, 

BUCHAXAN,  J.  (a.)  The  case  is  this — A  judgment  wa-4 
rendered  against  the  defendant,  in  favour  of  the  plaintiffs, 
in  the  late  general  court,  upon  which  judgment  a ,/im/rtct'a* 
issued,  returnable  to  this  court,  and  the  sheriff,  to  whom  it 
•was  directed,  laid  the  same  on  the  real  and  personal  pro- 
perty of  the  defendant  on  the  16th  of  April  1806,  and  on 
the  21st  of  April  1806,  an  appeal  bond  was  filed,  and  writ 
of  error  issued,  a  certificate  of  which  being  shewn  to  the 
sheriff,  he  made  return  on  the  fieri  facias  to  this  court, 

(a  )  'A'l-ghman  J   concurred  with  a  majority  of  the  court,  but  lie 
".as  net  present  when  the  judges  tlelivered  their  opinions. 


Iti 

"  ami  (ho 

application  lo  the  umrt  Q 
jMfc 

I  vt   are  not   con; vtent   to  ;i 

ward  ;  »  because,  1,  'hi-  ^"t 

-  »«T77m>  I'M, 

.  has  beer,  import    of  :!,,->    iM»ition:   but 

-.•If;  for    it    is  there 
::ill  lx-  iv 

i  01    a<!  judged  t.»  Iv.-  law:  and 
'.  of  (he  (.'  u»nie, 

it"  it  Joes  not  ilHVat  ihr  poMiion,    it    at  lr:.-t    weakens  the 

That  !h«- 

cf  the  property,  He-no  to  be  a  position 
:  •iiittnl  !)V  our  l>ni!! 

:  ran  it  now  lit-  a  <|'i--- -i  in.  for  the  cui  i 
thorities,  both  before  and  .since  Rollc,  are  to   ('IP  ron 

.  after  the 
• 

is  irregular,  a?;  '  ityiu 

shall  be  ivturm-d:  !)'it  in  nn 
•lie  execution  i->  ii  re^ufai',  ^!,.»!1  Die  tlcH':, 
•ruMon  of  jii-ijiprty.     And  in    ill. 

•he  sci/.'ire  therefore  u:x.>  regular  an;l  lawful,  and  not 
within  the  exception. 

But  it  has  been  -a'rl.  that  alMnrr^h  the    defendant" is  not 
•  1  to  a  return  of  the  pnperly,  yet  the  goods  shail  re" 
main  in  the  (onditinji  in  ,\!,'v.!i  tlv 

•n'in  te    i;. 

ron  ami  in  support  . 

Clarkr,  \\.  it    i- 

said,  that  «'ie:  ••  .  and 
bait  in  error  al* 

':  ')'it    I    do    n-»t  'tuider 

stand  that  cane  to  <n.  ,  ,\n  in  thr 

-    until  tin;  ulti'ii-tlc    dci  •r-iination   of    the 

wit  i  I  (ake  the  1;               -itinn 

and  n  -i.i'i  Ix'in 

an  "!  with- 

out the  control  0  la  supers- 

•*jt  reach  it;  and  indeed  the  rcas.-jn  of  t1  rCM»il 


OF  MARYLAND.  17 

to  any  other  construction.  Writs  of  errdr  are  loo  fre-  1806. 
ijuently  resorted  to  for  purposes  of  delay  only;  and  if  a  ^—  J~T~T-/I 
writ  of  error  issued  after  noi  ertv  taken  in  execution,  was 

'  Chaplin* 

a  supcrsedtas,  the  inconvenience  resulting  to  creditors 
would  be  very  great,  for  no  defendant  would  ever  sue  out 
his  writ  of  error,  until  the  sheriff'  had  proceeded  on  the 
execution;  and  though  the  plaintiff  should  delay  his  exe- 
cution to  the  latest  practicable  period,  the  defendant  would 
be  as  backward  with  his  writ  of  error;  a  practice  which 
would  prove  very  vexatious  to  creditors,  and  the  contrary 
position  can  be  attended  with  no  inconvenience  or  loss  to 
defendants;  for  if  they  have  merits,  and  in  truth  wish  to 
take  their  cases  to  a  superior  tribunal,  for  good  cause,  it  is 
at  all  times  in  their  power  to  do  so,  before  any  proceedings 
are  had  under  the  judgments  below.  But  it  is  said,  that 
if  a  writ  of  srror,  issued  after  property  taken  Under  a  fieri 
facias,  is  no  sitpersedcas  as  to  the  sale^  it  would  work  great 
hardships  to  defendants  in  cases  in  which  the  judgments  be- 
low should  be  reversed;  but  that  cannot  be  deemed  a  hardship 
which  a  defendant  draws  upon  himself  by  his  own  negligence; 
and  if  it  is  an  inconvenience,  it  is  one  of  his  own  seeking; 
it  is  an  inconvenience  to  which,  in  a  controverted  case,  he 
need  never  be  subjected,  and  which,  in  cases  of  removal 
for  delay  only,  he  deserves  to  suffer,  and  none  but  himself 
should  suffer  by  his  laches,  which  might  not  be  the  case  if  the 
goods  were  to  be  arrested  in  the  sheriff's  hands  to  abide  the 
suit  in  error;  for,  though  the  defendant  files  his  bond  with 
sureties,  on  suing  the  writ  of  error,  yet  it  cannot  be  con- 
tended, that  the  plaintiff's  security  would  not  be  lessened 
by  a  delay  of  the  s.ale,  until  the  suit  in  error  was  determin- 
ed* The  goods  themselves  are  the  best  security  a  plaintiff 
can  have,  and  if  they  were  to  be  arrested  in  the  hands  of 
the  sheriff  until  the  affirmance  of  the  judgment,  not  oinv 
they  might  perish,  but  the  appellant,  and  his  securities 
might  become  insolvent,  and  the  appellee  be  thus  defeated 
of  his  just  claim,  so  that  the  security  of  the  plaintiff  would 
certainly  be  lessened,  and  that  by  the  intentional  delay  of 
the  defendant.  And  in  the  case  of  personal  property,  it 
would  be  better  for  the  defendant  himself  that  it  should  be 
sold,  than  to  lay  in  the  hands  of  the  sheriff,  where  there 
would  be  the  greatest  probability  that  part,  if  not  all,  would 
perish  before  an  ultimate  determination. 


VOL. 


18  *    ^SE8  IN  T1IK  CnrRT  Ol>  APPEALS 

The  !ui  i  _  defendant-    \\a-muchand  ably 

dwell  a9    (ho  (MH'-tion  related  to   zooda 

i  'Hitler;!  '..'•:  but  it  i- admitted,   and  so   arc 

the  authorities,  that  if  a  writ  of  error  coin--  after  the  de- 
nt i-,  taken  under  a  ra.  su.  it  i-  no  Mijjcrsr.deas,  and 
the  defendant  mu-t  lie  in  gaol  until  the  suit  in  error  is  de- 
termined: and  if  the  puggestion  of  hardship,  is  an  argu- 
iiu-nt  to  >hew  that  a  writ  of  error  is  a  *»/n  rxnluis  as  to 
-ale  of  goods  taken  bef.ire,  the  argument  applies  much 
more  forcibly  to  the  situation  of  the  defendant  him-dl, 
^ho  i>  i:i  uaul  under  the  in.  aa.  for  certainly,  it  is  harder 
to  be  coniined  in  a  pi  i-<>n.  than  to  have  goods  sold  under 
execution;  but  tliis  argument  of  hardship  has  never  prevail 
ed  in  the  case  of  a  sei/.ure  of  the  person  under  a  ra. 

irt  b\  all  the  l»o:ik>,  and   »>urely   then  it    ou^ht  not    to 
,il  where  it  applies  \\itli  le>s    f»rte.      NN'hen    a  defen- 
dant will  not  sue  out  his  writ   of  error,    before    his  goods 

:/.ed  under  a_/?.  fit.    it  a  (lords  a  strong   presumption 
that  his  object  is  delay  only,   to  which  as  little  enc<> 
ment  should  be  u'nen  U  ron-i-tently  with  ti  )l  prin- 

liplcs  of  law  can  b-:  ami    si»    much    have  .courts    1 
against   such   practices,    that   in  the  case    Mn^l<  nnmt  t-.v. 
(irunt^j  TII-III    /.'(/.-.  714,  the  court  refused  to  .-lay   pro- 
ceedings,  the   plaintiff'  in   error  having   declared  that   he 
brought  the  writ  of  error  for  delay. 

The  property  in  ^ooils  taken  by  a  sheriff'  under  zfi.  fu. 
become^  alteied  by  the  sei/.ure,  by  authority  of  law.  for  all 
the  p-npoM^  intruded  by  the  writ;  and  therefore  it 
a  writ  of  error  which  romes  afterward?,   i-   not   a  ntpertt' 
:   f.,r  the  writ  ufji.fu.  may,  by  t:  .be  said  to 

:;;»vl.  »ime  th:-    -IterilV,    without  making  any   return 
thereof,  may  wll  the  J.MI;-!-,  ai.d  >.itisfv  the  judgment.      H 

1  in  1  ]hnimli)n\  :i,  "ihat  if  the  sheriff'  takes  goods 
undery?.  fit.  and  return*  that  they  are  in  his  hands  for  the 
\\ant  of  bu  •  ;-roj)ei!y  rrmui/ia  in  th;-  defendant:" 

:ch  is  tlie  <  urrent  of  authorities  to  the  contrary,  that 
I  ca:;'  j.n.Miioii,  if  by  it  i-  i::.-;;i:t  that  the 

properly  is  not  altered:  and    thf  writer  may  ha\e  intended 
to  a't  Setv,  een  the  property  being  altrrcJ. 

'•••/  (.ut  of  the  defendant.     There  is  a  case  also  in 
•iVned  to  in  the  argument,    in 
vhich  i»  i-  --lid.   tlut   neither  Ivf-.u-   hor  since  the  statute, 

iiich  tlic  property  is  only  bound  by  the  delivery  ofth»- 


OF  MARYLAND.  19 

writ  to  the  sheriff,)  is  the  property  of  the  goods  altered,  but        1806. 
continues  in  the  defendant  until  execution  executed.     But      v— v— - ' 

Ueatiy 

I  do  not  consider  that  case  as  an  authority  against  me,   on  >••. 

Ctapline 

the  contrary,  I  view  it  as  an  authority  in  support  ot  the 
position  I  have  taken.  The  question  in  that  case  did  not 
arise  on  the  effect  of  the  seizure  by  t/ie  sheriff,  but.  of  deli- 
very of  the  writ  to  the  sheriff".  Before  the  statute  the  goods 
were  held  to  be  bound  from  the  teste  of  the  writ,  but  by  the 
statute  from  the  delivery  of  the  writ  to  the  sheriff;  and  Lord 
Hanlwicke  meant  to  say  no  more,  than,  that  although  the 
goods  were  bound,  yet  the  property  was  not  thereby  altered 
until  seizure  by  the  sheriff;  and  probably  by  the  expression 
"execution  executed,"  he  intended  no  more  than  a  taking 
under  afi.fa.  or  he  may,  (under  the  idea  of  an  execution 
being  an  entire  thing,)  have  meant  that  by  the  taking,  an 
execution  becomes  executed;  and  the  same  language  is 
used  in  the  case  Meager  vs.  Vandych^  in  2  Bosanquet  and 
fuller,  370,  where  the  taking  of  goods  byy?.  fa.  is  called 
the  execution  of  the  writ. 

The  property,  by  seizure,  is  altered  for  all  the  purposes 
of  the  execution,  and  thus  is  placed  out  cf  the  reach  of  a. 
wpcrsedeas  on  writ  of  error.  If  the  sheriff  after  seizure 
dies,  his  executor  may  sell;  after  he  ceases  to  be  sheriff  he 
may  sell;  if  the  plaintiff  or  defendant,  or  both,  should  die 
after  seizure,  he  may  sell,  and  he  may  sustain  an  action  for 
the  eoods  against  a  stranger,  or  even  against  the  defendant 
himseif,  if  he  takes  or  destroys  them.  In  short,  the  au- 
thorities are  so  numerous  and  unequivocal  in  support  of 
this  position,  that  all  reasoning  on  the  subject  seems  to  be 
shin  up.  Lord  Chief  Justice  IVilles,  in  deciding  the  case, 
Merriton  vs.  Stevens,  page  281  of  his  reports,  says,  (in 
speaking  of  the  case  in  2  Rollers  Ab.  491,)  very  laconically, 
(which  shews  that  the  principle  was  then  well  settled,) 
"the  reason  not  beirig  a  true  one,  I  give  no  credit  to  this 
case."'  And  the  reason  assigned  by  llolle.  is,  that  the  pro- 
perty is  not  altered  by  the  seizure.  And  Gilbert,  in  his 
treatise  on  executions,  not  by  quotations  from  other  au- 
thors, and  without  reference  to  any,  but  as  a  text,  lays  it 
down  as  established  law,  as  an  undeniable  principle,  that 
the  property  in  the  gaods  is  altered  by  seizure,  anil  the 
sheriff  may  sell  notwithstanding  svpersedeas  comes  after- 
wards, and  if  he  does  not  the  court  will  award  a  vendilioni 
The  same  position  is  also  laid  down  in 


20  «   \>r>  IN  '1'Hfc  CorilT  OF  APPEALS 

18°6.        Sheriff,  both  book*  of  very  hi^h   authority;  aad   it  tan- 
be  ;  .  esumed  that  the  iiiir--i->n  \\.i-  \\n<    I'-illv  M-trled  when 

t  true  position,  that  a  defend  - 

atit  is  diicharged  b\  re  of goods  und.-r  fi.fu-  - 

as  the  good*  taken  v.  ill  go;  and  >nlar  tin-  jiul-m-nt.  a-  l)'>- 
turrn  tin;  plaintiH'  and  i:  i.-  in  Hlri  '  »ati-!i«'d,  and 

the  debt  d'lMliai-ir*  d,  and  beiu  iiin^ 

for  a  sitperaedeas  to  operate  upon,  or  in  other  wonU  not'iin^ 
to  be  superseded;  and  hence  it  is,  that  a  writ  nl 
in  no  way  aft'ect  goods  already  ta!;«-!i;  for  it  would  be  idle 
to  say,  that  a  writ  of  error,  (which  is  issued  to  n-\  iew  the 
proceedings  in  the  court  below,  and  to  prevent  a  judgment 
being  satisfied  before  such  r-\5ew,)  shall  operate  as  it  .s  •' 
pcrscdcatio  that  end,  after  the  judgment,  so  far  as  con 
the  defendant,  is  actually  satisfied;  for  the  office  of  a  «<- 
persedeas  is  not  to  undo  what  H  done,  but  to  prevent  fur- 
ther proceedings;  therefore,  if  goods  only  to  part  of  the 
amount  of  the  judgment  be  taken  before  the  writ  of  error 
issues,  it  does  not  undo  what  is  done,  but  shall  be  a  super- 
$edcas  as  to  the  Uking  of  any  other  goods.  On  these 
^rounds  if  there  were  no  adjudications  on  the  subject,  and 
the  question  was  now  to  be  decided,  I  should  !>e  of  opinion 
that  the  writ  of  error  in  'his  case  H  mr  •//•</.*.  lint 

t!i"  authorities,  independent  of  any  reasoninc;,  arc  not  to 
be  combated.  An  execution  is  said  in  the  books  to  be 
an  rntirc  tSiin-z,  and  when  once  begun  cannot  be  stopped  or 
superseded.  But  the  different  writer*  ha\>  r! ear- 

ly explained  their  meaning  ot  vetv    of  an  e\ 

(.n,  tiiou^h  they  all,  except  Itnlle,  ajree   in  this,  that  \\lien 
•  uu-e  beirun  it  cannot  be  superseded.    The   writ  of  fi.  fa. 
<  omr'.iands  the  aheriff  that  of  the  unoiU.  vVc.  <»f  the  d»-!'rn- 
dant,  he  cause  to  be  made  the  debt,  &c.     The  maki 
the  debt  is  the  thing  to  be  done,  and    the  <>f  the 

goods,  the  sale,  &c.  are  but  the  manner,  and,  as  br 
the   plnintiir  and  defendant,  the  debt  ia  in  eftect  made   by 
the  seizure,    so  far  as  the  goods  will  goj  or  the  execution 
may  be  said  to  be  an  entire  thing  in  this,  that  after  seizure, 
the  appraisement,    notice  and  sale,  are  matters  of  course, 
and  incident  to  the  oflice  of  sheril!':  and   when  done,    have 
relation  back  to  the  original  taking,  and  thus  I. 
law,  arising  out  of  the  doc  trine  of  relation--,  it  ' 
rntin'    tl.in^ — as  is  the  case  in   v\rial    kinds   of  convey- 
ances: for  instance,  by  fine  or  common  recovery;  and  also 


OF  MARYLAND.  St 

>A  the  common  case  of  a,  grant,  which  issues  aa  a  matter  of  18lKi. 
course,  (all  requisites  bavins;  been  previously  complied 
with,)  and  relates  back  to  the  certificate,  and  thus  makes 
it  one  entire  conveyance.  But  the  entirety  of  an  executi- 
on has  been  denied,  and  in  contravention  of  the  principle, 
the  case  of  Hu'chinson  vs.  Johnson,  reported  in  1  Term 
Jf,p.  729,  has  been  cited  and  relied  on,  tho  -h  I  cannot 
conceive  how  the  decision  in  that  case  in  any  way  affects 
the  question.  The  decision  is,  that  where  two  execution; 
come  to  the  hands  of  a  sheriff,  though  he  seizes  the  goods 
by  virtue  of  that  which  was  last  delivered,  yet  he  may  and 
ought  to  apply  them  to  the  discharge  of  that  which  was 
first  received,  because  the  goods  were  b>und  by  the  delive- 
ry of  the  first;  but  the  court  also  said,  that  if  the  sheriff  in 
such  case  actually  sells  under  the  second  execution,  the- 
sale  shall  stand  good,  ami  the  person  claim  ig  under  the 
first  execution  shall  have  his  remedy  against  the  sheriff; 
and  this  last  position,  under  the  statute  of  frauds,  for  the 
benefit  and  quiet  of  innocent  and  bonajide  purchasers. 
But  this  case  does  not  at  all  deny  the  entirety  of  the  exe- 
cution, but  is  grounded  on  the  principle  that  the  goods  be- 
ing bound  by  the  delivery  of  the  first  writ,  the  seizure  un- 
der the  second  was  altogether  irregular.  And  in  Carthew^s 
Jlcp.  420,  the  case  of  Smalcomb  vs.  Buckingham,  the  same 
principle  in  favour  of  a  purchaser  is  decided.  The  autho- 
rities in  support  of  the  principle,  that  a  writ  of  error  after 
goods  taken  under  a.fi.  fa.  is  no  si'persedeas,  but  that  the 
sheriff  shall  go  on  to  sell,  are  very  numerous,  and  some  of 
those  which  are  most  in  point,  and  by  which  the  principle 
seems  to  be  so  firmly  established  as  not  now  to  be  shaken 
by  any  artificial  reasoning,  I  will  take  a  short  view  of,  as 
this  is  a  case  depending  upon  authorities. 

The  first  of  them  in  order  of  time  is  the  case  of  Char- 
ter vs.  Peeler,  in  Cro.  Eliz.  597,  in  which  case  the  sheriff 
took  the  defendant's  goods  by  bji.fa.  but  before  sale  a 
writ  of  error  and  supcrsedeas  carne,  whereupon  the  sheriff 
made  return  that  he  had  seized  the  goods,  but  that  they 
were  in  his  hands  pro  defectu  emptorum,  and  also  that  a  su- 
pcrscdeas  was  awarded;  and  on  a  motion  for  a  return  of 
property,  the  court  denied  a  restitution,  and  awarded  a 
venditioni  exponus,  because  the  execution  was  begun  by 
the  seizure;  and  a  case  in  Dyer,  98,  to  the  same  effect.  In 
Moor,  542,  it  is  laid  down,  tlut  if  the  sheriff  has  the  goods 


.    \.-K>  IN    1  .1,.  v  HiiiToK  AIM'F.  U,>> 


1806.       of  the  defendant  in  his  hands  under  a  //./</.  :n:d  a 
—  v^—  '       </fflj  come*.  lie  -hall  not  deliver  them,   but  shall  sell  them, 
because  the  be^inninn  of  tin-  M  \\.-i-  before  the  *n- 


per*ctlnrfs  ranii1.  and  the  exerution  heiirj;  entire  shall  not 
be  divided.  In  the  case  Tn>-«l  *  .  /f  'iii/num,  in  Ydr.  ri, 
it  is  held,  that  if  a  writ  of  error  and  *I'/H  ,  me  to 

the  rherift*  after  goods  taken,  he  shall  j  -"'I  what 

lie.  has  taken,  but  shall  lew  no  more.     And  in  the  ca 
liuktf  vs.  Jiulntroile,  1    1'iiitri-i,  v^.i.  it  is  dei  Med,  that  if 
the  sherill'  takes  goods  by  /i-  f<t-  before   writ  nf  error,    the, 
execution  is  not  to  be  undone  by  writ  of  error  afterwards, 
:he  time  tJie   writ   of  error  comes  the  »;oods  niav 

D  Iianti  for  want   of  buyers.      Hut    it    i>  argued,  that 

-    v.  ere  all  decided    before  the    statute  requiring 

bail  in  error,  and  that  after  the  statute  the  principle  before 

iis'-.ed   by  them  ceased  to  be  law;  and  in  support   of 

this  position  the   case  in  2  RoL  Ab.  491,    which  was  after 

the  statute,  is  relied  on;  and  this  is  the  only  case  I    have 

seen  either  before  or  since  the  statute  to  the  contrary.  And 

il  is  worthy  of  remark,  that  security  or  bail  in  error  beini; 

required  by  the  statute,    is  not   given  as  the  reason  of  ihc 

dcctrine  laid  dmvn  in  Jtolle,   nor  docs  it  appear  that   tin; 

statute  in  that  case  was  considered   as  working   ,111%    new 

principle,  but  the  reason  assigned  is,  because  the  pro)  ei  tv 

;ili'.<-«l    l>y  the   seizure.     This,    Lord  Chie^  Jusiiec 

IV  Hits  says,  is  not  a  true  reason,  and  in  that  he  is  support- 

ed bv  the  later  and  very  respectable    authorities.     In    'he 

.  Rocke  va.JJayrrll,  re]H>rted  in  4  Term  Reports,  411. 
Lord  A'un/on,  .speaking  of  the  writ  of  /?.  fa.  flui-  e:  j  KM- 
e>  himself  —  "As  the  property  of  the  debtor's  ^ood-  inbound 
In  the  deiiverv  of  the  writ  to  the  j-herifl',  there  then  re- 

m  no  property  in  the  debtor,  on  which  the  prer<  >_ 
•  I   the  Crown    can  attach;"'  a  much    stronger  case,  if  it  ia 
law,  than  that  of  actual  sei/.ure. 

In  the  case,  Clarke  vs.  Wit!  rd  in  A/,-/ 

.,!id  •!   /."        .  "./.    Kir-?.  tln>e    point-    wen-    M>l 

arlji.d^id  bv  the  whole  conrt,  but  particularly  by  //••//.  Chiif 
Justice,  and  (iituil.  Justice  —  That  a  sei/i,,  xls  in 

execution  is  a  di.-<  liaise  of  the  judgment;  that  the  Mih-tan- 
tial  part  of  the  execution  is  the  seizure,   and  that  the  ie-t 
is  all  form;  that  an  execution  is  an  entire  thing,  and  not  to. 
be  MiptM  -rded  after  it  is  begun,  and  that  the  sherill 
seizure,  (as  a  matter  incident  and  of  course,)   is  bound  to 


OF  MARYLAND.  SB 

sell;  that  after  seizure  the  judgment,  (as  to  the  defendant,)  1806. 
is  discharged  and  satisfied;  that  by  the  seizure  the  sheriff  ^v^1 
gains  a  special  property,  and  the  property  in  the  goods  is  Chflv>Une 
divested  out  of  the  defendant;  that  the  plaintiff"  has  no  far- 
ther remedy  against  the  defendant,  but  must  go  against  the 
sheriiF;  for  the  defendant  having  lost  his  goods,  may  (in  an 
action  brought  upon  the  judgment,)  plead  levied  byji.fa. 
in  bar,  and  it  will  be  good.  The  same  principle,  as  to  the 
alteration  of  the  property  by  seizure,  is  recognised  and  as.- 
serted  in  various  other  books  of  high  authority,  and  parti- 
cularly Gilbert  on  Executions,  23,  and  Impey^s  Sheriff. 
Let  it  be  observed,  that  the  only  reason  assigned  in  Rolle, 
win  a  writ  of  error  is  a  supersedeas  after  seizure,  is  ''that 
the  property  is  not  altered  by  the  seizure,"  which  is  an  im- 
plied admission,  that  if  the  property  was  altered,  the  writ 
of  error  would  not  be  a  supersedeas.  And  Gilbert,  and 
the  other  writers  say,  that  a  writ  of  error  after  seizure  is 
no  supersedeas,  because  by  the  seizure  the  property  is  al- 
tered; hence  it  appears,  that  the  question,  whether  the 
•writ  of  error  is  a  supersedeus  or  not,  depends  on  the  ques- 
tion whether  the  property  is  altered  or  not  by  seizure.  And 
the  case  in  Rolle  appears  in  so  questionable  a  shape,  and  is 
arrayed  in  so  doubtful  a  reason,  that  it  must  sink  in  the  cur- 
rent of  authorities  by  which  it  is  overwhelmed.  But  inde- 
pendent of  this  reasoning,  there  are  many  adjudged  cases, 
(since  the  statute  requiring  bail  in  error,  and  since  Rolle,} 
which  fix  the  principle,  that  a  writ  of  error  after  seizure  is 
not  a  supersedeas;  and  this  proves  that  in  England  the  sta- 
tute was  not  considered  as  affecting  the  case. 

In  the  case,  rfgers  and  Lenthal,  in  3  Keb.  308,  9,  it  is 
said,  "that  onfufa.  and  seizure,  if  no  supersedeas  comes 
before  sale,  it  is  good;  and  if  error  be  mesne  between  seiz- 
ure and  sale,  it  doth  not  avoid  it."  The  plain  and  obvi- 
ous understanding  of  which  is,  that  notwithstanding  a 
supersedcas  comes  after  seizure,  yet  the  sheriff',  havino- 
taken  goods  before,  if  he  proceeds  to  sell,  the  sale  shall  be 
good;  and  as  error  cannot  be  mesne  between  seizure  and 
sale,  unless  there  be  a  sale  after  the  writ  of  error,  the  latter 
branch  of  the  opinion  must  mean,  that  the  error  does  not 
avoid  the  sale;  by  which  it  is  evident,  that  the  writ  of  error 
coming  after  the  seizure  is  no  supersedeas,  for  if  it  was-, 
the  sale  would  be  void.  Lord  Mansfield,  in  delivering  the 
opinion  of  the  court  in  the  case,  Qoopervs.  Chiity.  reported 


t-l  CASKS  IN   .  RTnF  APPEALS 

1R06.        in  1   Jl'i.t.  Illtickstoni .  .   and  1  J!".->;>if.  34,  I.P     , 

d«»wn  as  a  lixe<l  principle.  tli;tt  a  v.  rit  of  error  canno> 
supersede  an  r\i<i;iiim,  or  a  fi.  fa.  actually  begun;  and. 
a-  IK-  says,  for  the  plaiiii  •  au^e  llic  ••xeruti.ii- 

ire,  and  if  once  lawfully  lu'-nn  i:m-;  be  completed; 
and  because,  as  bet  we  on  the  plaintiff  and  defendan.,  tin; 
debt  IN  discharged  by  a  seizure  wider  ft.  fa.  In  the  case 
The  Queen  vs.  A«*A,  reported  in  2  Aon/  Jfm/ni.  989, 
the  (|iie-tiun  arose  on  the  effect  of  a  czftiorari  <•• 
romiction;  which  was  brought  tifier  the  con«,(able  had  di->- 
traineti  the  go<Ml>  of  A'</.v/»  under  a  warrant  from  the  jus- 
tices to  levy  the  penaltj  for  deer  stealing;  and  Hull,  Ci.ief 
•lin«-  )],,.  rax-,  lihctitd  it  to  the  case  df  good* 
taken  under  a  JL  fa.  bcii-ic  \\.it  of  error  brought,  ami 
there  laid  it  do\ui.  (not  as  a  ca>e  of  fu.>t  impre»ion  and 
then  to  be  decided,  but  as  the  krtown  and  acknowledged 
••!'  the  land.)  lhat  when  gocnis  arc  taken  under  a  f:.  fa. 
and  tiicn  a  \\r\\  of  error  comes,  it  is  no  91  w,  but 

.'•rilV  -^li;!!!  proceed  to  sell,  and  if  he  does  not,  a 
tioni  r.'j.'iut"  m.iy  !)••  awarded.  And  so  fully  is  the 
established  in  England,  that   in   the   case,  Mrrrifon  vs. 

-(#,  in  Jtilffx  Jtrjt.  271,  Serjeant  tl  ijn/i,  who  argued 
in  -tipport  of  the  rule  to  set  a^'ule  the  //'.  fa.  admitted,  that 
if  the  slicritf  had  taken  the  ;;oods  before  sealing  of  the  writ 
of  error,  he  miirlit  have  |.ron-eded  to  -.f\\  them  afterwards. 
Thus,  then,  it  appears  by  all  the  authorities,  except  hullt. 
(both  before  ;:nd  since  the  statute  rcrpiirinu  bail  in  error,) 
that  a  writ  of  error  \\hich  i-»ues  after  •_  -t-i/.ed  un- 

der a  Ji-fti'  i-  not  a  *'••;  •  And  indeed  the  ( 

It'i'lti  may  be  reconciled  with  the  other  decisions?  for  in  the 

Sampson  vs.  liron  .  \  .V.),  444, 

-.iid,  that  the  mrpcrmJir*  i--;u'd  after  the  writ  of  error 
•{NO  which  it  WES  grounded,  illlnmji  the  t,t>}>rr- 

N  came  after  the   HOIK!^  \\i-re   taken,  yet   the  writ  of 
error    niL'ht.  (i«u    .-my    tiling   appeal  in;;  in  the  caM-,)  have 
been  i— iii-d  innl  alluv.  .-d  Ix-foiv,  and  the  sirprrsrilrii*  li.ixiii- 
ii-l.itii»n  back,  the  takin-  of  the  i;oo(U  was  iiregular.     The 
.it,  and  b\  no  means   full.      As   to   the   rti- 
of  an  execution,   if  it   should  be  admitted  to  be  a 
doc'.iine  established  on  artificial  i-ea-oniiiu:,  ^et  it  i>  an  Cfi- 
I  i-ir.tiple.  ;::.-.!.   (like  many  others  supported  only 
by  the  same  kind  of  reasoning,)  it  cannot  now    be   >li:tken, 
without  overthrowing  every  authority  upon  the  subject,  for 


OF  MARYLAND. 


more  than  a  century  past.     We  have  seen  that  by  the  com-        180fi. 

Be  any 

VH 

Chaplinc 


mon  law,  a  writ  of  error,  which  (if  taken  out  in  time,;  \vas 

.  .  .  Bcatty 

a  supersedt'its  without  security,  \\-asnotsmuperftedeas  if  sued 


out  after  goods  taken  under  a  ft.  fa.  We  find  also,  that  in 
Bngfand  the  statute  which  requires  bail  in  error,  has  never 
been  considered  as  altering  the  principle,  or  at  all  affecting 
the  case,  nor  indeed  could  any  such  construction  be  given  to 
the  statute,  which  is  in  these  words:  "That  no  execution 
shall  be  stayed  or  delayed,  upon  or  by  any  writ  of  error," 
&c.  "unless,"  &c.  Thus  the  statute  does  not  give  a  writ  of 
error  any  more  efficacy  than  it  had  at  common  law,  but  on 
the  contrary  takes  from  it  all  the  efficacy  it  had  at  common 
Jaw  as  a  mpersed&w,  unless  it  is  accompanied  by  bailj  and 
in  fact  makes  it,  with  bail,  what  it  was  before  without  bail, 
and  no  more;  and  this  being  the  uniform  construction  of 
the  statute,  not  denied  even  by  Rolle  himself;  for  (as  I 
have  before  observed,  the  case  put  by  him  is  not  attempted 
to  be  supported  by  authority  of  the  statute,  but  by  another 
reason  which  is  not  law,)  the  same  construction  must  be 
given  to  the  act  of  assembly  1713/  ch.  4,  regulating  writs 
of  error,  &c.  which  is  in  the  same  words  contained  in  the 
statute,  and  probably  so  far  copied  from  the  statute;  and 
indeed  the  same  construction  has  always  been  given  to  the 
act  of  assembly,  and  acquiesced  in  until  lately.  The  case 
then  is  shut  up.  In  England  no  question  exists,  nor  would 
an  argument  be  heard  on  the  subject ;  and  in  this  state  the 
words  of  the  act  of  assembly,  and  the  act  of  parliament, 
being  the  same,  they  must  receive  the  same  construction, 
and  our  courts  of  law  must  be  bound  by  the  authorities, 
whatever  artificial  reasonings  might  be  offeied  to  the  con- 
trary. The  old  supersedeas  law,  and  the  practice  which  is 
said  to  have  been  pursued  under  that  act,  have  been  urged 
by  counsel  in  argument,  to  shew  the  true  construction  of 
the  act  of  1713,  ch.  4,  but  neither  that  act,  nor  thejiractice 
xinder  it,  (whatever  that  practice  may  have  been,)  has  any 
bearing  on  the  case;  for  when  it  is  said  that  an  execution  is 
an  entire  thing,  and  cannot  be  superseded,  it  is  intended 
by  a  si'pcrsedeas  on  writ  of  error,  and  not  a  supersedeas 
created  by  statute,  or  an  audita  quserda,  &c. 

The  cases  which  turn  upon  the  point  of  time,  from  which 

a  writ  of  error  was  held  to  operate  as  a  super ar  leas,  relate 

to  this  case  in  no  other  manner  than  as  they  shu\v,  that  at 

common  law  a  writ  of  error,  which  Issued  after  goods  Arerft 

voi«   ii,  1 


>  CASKS  IN  THK  (  orft'f  OF  AIVI-.  \i .- 

1806.        sei/.ed  under  &fi,  /  >  •  /*v/?;  and    in    tin- 

case  the  writ  (if  error,  h.ivin^  i»>>ied  after  the  goods  \\ »  u- 
talvn  b%  MM-  -heritV,  it  IIHI>I  ivttixe  the  same  construction 
whiJi  ;;t  i  iiniiiHiti  l.tu  it  would  l,a\r  had,  the  act  of  assem- 
bly uixin^  to  writ>  of  error  as  surh,  no  »reater  efficacy' 
had  b-fore;  nor  d.,,  .  ,  that  the 

.   wa*    laiil    nu  lands   as  \\oll    a-  -onil-, 
«•  any  ilifu-renrr:  for  by    the  act    of  Parliament,  umlci 
'.  lauds  are.  ht-ld  to  be  liable  \»    c\f(  utiuii  for  debt    ii. 
(hi.-,  state,  real  and  pti\vonal  property  are    plan-d  pn-ci-elv 
on  the  same  footing. 

I'l  i-ii  Hi--  \\!ii;!e,  I  «on-'nli-r  Ihi.^  not  as  a  now  ca^e  nou 
to  be  determined,  but  om  \\!iich  has  been  settled  ever  since 
the  ivin»  of  Q  'i!n'tli  and  not  shaken  by  ;u 

pt  that  of  Tin  •  "f  ll'nf 

f*agt,  el  aL  which  was  determined   contra  in   the 
in    >hi«re    u'''i''i^l    I'ourt.    by    my    brother    the    Chief 
.lutL  •'pinion-.  I  \ei  v  mm  li  ic-jiri  t,  b.it  to  which  I 

>i  yield  in  t'nU  ca-.-.  beini:  lied  up  by  what  mn>t  nm\ 
.ti)li>!i*-d  la\\  :  and  am  therefore    of 
opinion  that  a  niulili  .'it  to  be  auaulej. 

NICHOLSON,  J.  said,  he  had  uniformly  been  of  opinion, 
lhat  it  was  improper  for  th«>  court  in  the  last  resort,    to  a^ 
m»  f"i  (!>e  final  judgment.     In  the  inferior 
it  \\a-  rrop'-r   that    they  should   <tive  t!ie   reasons    of 
their  deci.-ion,  l>ccau.se  it  afforded  counsel  an  opportunity, 
when  they  came  before    the  cov.rf  of  appeals,  to  shew  the 
I.J'.acv  of  the  rcas-niin-j;  of  the  court  below,  if  it  was  falla- 
Hr  had  therefoie.  <.ni!iis  account,  aluay*  ^i^el)  the 
reasons  of  the  court  in  which  he  presided.      Hut  here  there 
that  kind,  huau-e    the  decision  of  the 
ronrf  of  ;i  CADli  t'ne  hm  of  the  land,  whether  that 

or  t'n  .r.\-j  wa-  or  \\;i>  not   correct;  and  where  the 

liad,  it  was  too    «>ften  blended  with  the    de 
•  in  I.    ;;nd    confide:  »••!    i;ke\\i«4-as    the    law. 
•  n-»  in  the    court    of  the 
\  exen-.jdilied  in  this  case. 
'akt-n  in  the  opinion*  -riven  by  two 
of  the  iinl^e>,  whiili  in  u   did  not   belong  to  the 

di<J  or  t'.id  not  <ln«-i  the  i.iopei :  v  ...  i  of  (he  defendant,  and 
•  or  the  defendant  d.       I'pon 


OF  MARYLAND.  87 

These  two  points,  he  might  agree  \vith  the  presiding  judge,       1 806. 
(Chase.)  although  he  diftered  with  him  in  the  result:   and      *— N — ' 

Beatty 

upon  the  same  points  he  might  ditt'er  with  the  other  judge,        chaT!l,irift 

(Buchanan J    although  he  agreed  with    him    in  the   result. 

lie  wished  it,  therefore,    to  be  distinctly  understood,  that 

lie  gave  no  opinion  upon  either  of  'hese  points,  except  that 

they  had  no  bearing  whatever  on  the  question  submitted  to 

the  court. 

He  had  been  induced  to  decide,  that  a  writ  of  error  after 
seizure  upon  a  fieri  facias  was  no  sitpersedeas,  by  a  long 
train  of  decisions  for  more  than  two  hundred  and  fifty 
years,  (from  the  1st  year  of  Queen  Mary.)  A  train  of  de- 
cisions prevailing  for  such  a  length  of  time,  with  the  soli- 
tary exception  of  the  case  in  fiolle,  he  considered  equal  to 
a  statutory  provision.  The  whole  reasoning  on  the  point 
really  before  the  court,  was  given  in  three  lines  by  Lord 
Mansfield,  in  the  case  in  1  Wm.  Blue-stone 's  Reports,  67, 
vi'/..  Jin  execution  being  entire  in  its  nature,  and  once  be- 
gun, cannot  be  superseded  by  a  icrit  of  error,  bid  must  be 
completed,  because  the  property  is  of  a  perishable  nature, 
and  is  not  to  remain  in  the  sjierijf">s  hands  to  await  the 
final  determination  of  the  suit, 

GANTT,  J.  This  is  a  motion  for  a  vendiiioni  exponas^ 
and  the  case  is  shortly  this:  Aft.  fa.  was  regularly  issued 
upon  a  judgment  obtained  in  t  lie  late  general  court j  this 
fi.  fa.  was  regularly  executed  by  a  seizure  of  real  and  per- 
sonal property.  After  seizure,  the  defendant  filed  a  writ 
of  error  bond,  and  a  writ  of  error  accordingly  issued,  mesne 
the  seizure  and  sale  of  the  property  tal^en.  The  sherift* 
returns  that  the  sale  of  the  properly  is  stayed  by  writ  of 
error,  and  the  motion  for  a  vaulilioni  expomts  is  founded; 
upon  this  return. 

I  was  absent  on  the  first  day  of  the  argument  of  this  mo- 
tion; but  have  been  furnished  with  a  list  of  the  authorities 
cited  by  ihe  counsel.  I  have  reflected  upon  the  case,  both 
before  and  since  the  argument,  and  have  referred  to  the  au- 
thorities cited — and  as  I  concur  with  the  majority  of  the 
court,  1  will,  in  as  brief  a  manner  as  the  case  admits  of, 
give  my  opinion,  ami  the  principal  reasons  which  govern 
my  decision. 

I  shall  not  pursue  the  various  cases  which  have  been 
cited  in  order,,  or  .particularly  comment  upon  them.  I  con 


28  -.:>  IN  riiKcorii  r(,K  UMM 

aider  it  a  V...MP  <.f  time,    av  :  rouble:    almost    the 

whole  of  tin-in    are  foi-.ndcd  upon  one  of  t!i  ns — 

v  hether  a  writ  of  error  ; 

allowance  of  the  \\  i  i;   or   /«///(/•  of  it>    ev><  ntion:  \\!. 
flu'  e\ei iition  ha-  been  regularly    i-vied,  01  .  r  ae- 

on .iin;:  to  tin-  rule*  of  prat  !.. 

in  f«  <u  lor  |i\ittii:'j  in  Iniil  D::  •  ror  under 

th(>  >lati;' 

Dcci>i(ni^,  fnundi'il  UJMIH  t-itlior  of  t'i  .    <](> 

n»it  apjilv  tu  tin-  j.'irM-nt  ( ;i-c.      'i  l:r  -nlc  (pif-Mcii  i-,  \vhc 
tlior  tlii^  \\rit  of  IIMU  upi-ntes   as  a  superseded*  to  stay  a 
sale  of  tin-  property  tak'Mi  under  tin1  ./'•/«•  regular! v  'ISMMM! 
and  executed  liv  scty.ure,    before  the  \viit    of  m 
In  other  \\onN,    vhetlier  the  plai:  •  milled  i 

to  a  writ  of  rt/nii'.innl  i.ijmnc^  to  compel  the  sheriff' to  s«ell 
that  property? 

The  statute  of  James,    and  the  act  <  >lv  quo  ad 

iiio  subject  of  inquiry,    are  in  my  opinion  •  Miilar. 

1  will  dispose  of  them  fir>t,  and  then  advert  to  those  prin- 
ciples of  ti-.c  ((million  law  wliich  jBvemthis«pMStkMi  The 
statute  of  James  was  meant  to  correct  the  abuse  of  wrii> 
of  error  issued  for  delay,  and  to  remedy  a  deled  of  the 
common  lav.,  which  entitled  a  party  to  this  writ,  without 
:_M;ii:  the  plaintill'  seemly.  h-  elVi-ct  wmt  '<»  dt-troy  the 
implied  sttpe  rscdc  ns  of  a  writ  of  error,  unless  seem  it  \  \\;t,. 
C'ases-daily  occur  dl  i-  niirj;  writ>  of  error  with  • 

.  ,i:id  the  only  difference   between 

writ- at  tills  time  and  before  tii;1  statute  or  ait  of  assembly 
.t    it  does  not,  at    this  time,    supersede  a-i  e\f(  ution, 
formerly  it  did  -upn-ede  it. 

The  act  of  assembly  prescribes  a  different  mode  for  tak- 

(  iirify  than  the  one  |:ie-(  rilied  b\   the  statiii. 
-    no  further  change    of  the  common  law  in  tin 

^   iiher  the  statute,  nor  the  act   of  assembly,    «lej  : 

:  laititiff'  of  any  ri-Jit,    or  destroys  any  ; 
rest  or  s  li'nh  either  lie  or  the  sheriff'  had  acquir- 

ed.    It  extends  not  the  legal  operation   of  that  wiit,  not 
does  it*  effect  reach  fart  In  r  statute   than  it  did 

before,  when  1 1  \  was  given.  It  supei-ed,  -  not'niii- 

.  which  it   did  not  supersede   before;  but  takes 
from  the  »!.  •!'<  nd  .mt  that  power  which  the.  common  law  gave 
liiiu,  of  fctayiu^;  further  proceedings  on  a  judgment  withoyr 


OF  MARYLAND.  SO 

any  security  at  all— and  this  is  the  whole  extent  of  the  sta-        1 800. 
tute  and  act  of  assembly,  as  far  as  relates  to  the  present 
subject. 

No  case  has  been  cited,  and  none  can  be  quoted,  shew 
ing,  that  by  the  statute  or  act  of  assembly,  a  more  exten- 
sive effect  or  operation  has  been  given  to  the  superseded*  it- 
self, than  what  it  had  at  common  law— none  of  the  cases 
cited  hinge  on  this  principle. 

At  common  law  &fi.  fa.  charged  only  goods  and  chat- 
tels. In  this  state  lands  also,  in  which  the  defendant  IMS 
any  legal  estate  for  his  own  use,  may  be  taken  under  this 
process;  and  being  equally  liable  to  seizure,  that  species  of 
property  becomes,*  of  course,  equally  liable  to  the  same 
rules  and  principles  which  govern  the  other;  I  mean  as  to 
the  seizure,  and  as  to  the  power  of  selling,  and  also  as  to 
the  alteration  of  property,  but  subject  to  a  difference  as  to 
the  time  and  manner  of  selling  it.  A  sheriff  may  maintain, 
actions  for  injuries  done  to  the  one  as  well  as  for  the  other 
species  of  property,  according  to  the  nature  of  the  injury, 
and  the  qualified  interest  which  he  has. 

At  common  law  a  fi.  fa.  charged  the  defendant's  goods 
from  the  teste  of  the  writ— a  writ  of  error,  therefore,  operat- 
ing as  a  st/pcrsedeas,  would  destroy  this  charge,  if  there 
had  been  no  seizure,  not  express!?/  so,  but  by  legal  implica- 
tion and  consequence.  But  if  the  sheriff  had  seized  goods 
under  af.  fa.  he  thereby  acquired  a  property  in  them — • 
To  what  extent  or  purpose?  For  the  purpose  of  selling 
them,  and  of  having  the  money  in  the  coi-rt  to  pay  to  the 
plaintiff.  (Gilb.  15,  &c.)  This  property  of  course  was  not 
absolute,  but  qualified .  It  was  co-extensive  with  this  ob- 
ject and  purpose;  and  only  extended  thus  far,  and  no  far- 
ther. Some  authorities  say,  that  by  the  seizure  the  de- 
fendant's property  was  divested — 'tis  true,  it  was  so, 
but  not  absolutely.  The  expression  must  be  construed  with 
reference  to  the  subject  and  nature  of  the  case;  that  is,  as 
far  as  the  teste  of  the  writ  or  seizure  of  the  goods  had 
vested  a  right  or  property  in  the  sheriff  or  the  plaint iu" — 
so  far,  and  no  farther,  was  the  defendant's  property  in  them 
destroyed.  What  was  the  purpose  of  the  law  in  vesting 
the  property  in  the  sheriff,  or  in  charging  the  goods  from 
the  teste,  and  afterwards  by  statute,  from  the  delivery  of 
the  fi.  fa.  to  the  sheriff?  In  the  first  place,  to  prevent 
the  defendant  from  fraudulently  selling  or  wasting  them; 


I  .  . 

1806.       and  secondly,  for  I:  :inp;  them, 

*"-•  -  J-'      'and    '  nirt.      Tin  i«-luif,    < 

that  tin*  } .urpoM'  of  tin*  law    v  lied,    the 

the  U  Derated  and  belonged  to 

whether  they  had  been  seized  or  nut.     The  pro]- 
the  *»heriH'  had  acquired  theft  .  •<»  pay 

rated,  and  the   defenda*. 
ship  once  more  became  rump'  :ile  the  slirrill"-*  pro 

inta'm    trovi-r  or  trespa-- 

till  a  eale,  the  defendant  might  lav. fully,  in  mv  judgment, 
contrai  ?    for   the  wte  «f,  or  //•///  fhr  •  jrrl  to  fhr.. 

'•/'•//  Mr  /«•<•  AW  vmpo&cd  on  them.     Now   tin' 
pherirt'  had  a  qualified  interest  ia  the  s;ood.*:  the  dcJV, 
:  qualified  interest  al-o:  and  tlio-«*  qualifu-d   \\r 
together,  composed  a  fall  and  absolute  ownT-hip;  each 
party,  therefore,  had  a  property  in  the  ^oods.      if  tin-  sin-riff 
.  hffS  executors  had  hi*  proj-vrty  in  :othc 

If  gal  purpose  '.  iloned.      II   \\. 

enecu torsi  had   his  interest.     The  |>O\MT   v.  hic'u .  t'-te  - 
had  of  seliin-z,  ^hen  exercised,  ultimately  deterijft'nieJ   th«- 
qualified  interest  of  each,  and  \o^ted  the   ahsolucc  O\\IK  i 
drip  in  the  purchaser.     After  the  loo;al   purpuv 
8  we  red,  the  n-vidn:-  uf  the  joods  belonged  to  the  dt-fcji 
ur  liis  asaigas,  an  the   lien  or  charge  on  the  -Mmd^.    or  the 
property  i  M  r.f  the  dtfendunt  had  ceased,  or  u;^ 

Let  u»  HOV  c«Ti»ider  tiie  nature  of  a  writ  of  error, 
its  object  and  it*  eti 

-i,  a<  to  I'  It  i-  to  H'!DC\"    the    record   ainf 

prteetdjag*  of  an  inferior  tribunal   to  a  supci 

«' that  reccn!,  and  reverse  the  judgment  of  the  in- 
fetior  court  if  it  is  erroneous:  and  the  record  must  of  course 
be  tl.  iliject  of  inquiry,  for  the  su^e^tiou  upon 

.  that  in  the  recoixl  and  j:: 
t»ere  it  error. 

It  i  .ind  proceedings.    Tf  no  //.   /. 

.'.  has   i*"-1.-     .  implication  this   v 

error  operates  further,  it  suspends  the  power  of  the  i; 

urt  to  iwue  a  /'.  f(t.  fer  t!:e  n-(  i  :  •.!,  in 

law,  an  remored  to  mttmiti  that  the  writ  operates:  there 
lore  there  is  no  foundation  for  the  inferior  court  ; 

.  a»  it  can  only  be  grounded  on  a  judgment  in  tftr 
which  tames  if.  and  the  judgment  is  removed 


0V  MARYLAND.  Si 

t?ie  proceed  ings.     Hence  the   doctrine  of  contempt  in  the        1806. 
inferior  court  in  issuing  the  ft.  fa.  or  the  sheriff'  in  serving 
it  after  such  writ  of  error;  and  hence  the  doctrine  of  exe- 
cutions irregularly  issued; 

But  if  the  ft*  fa-  has  issued,  and  is  not  served,  the  she- 
\iflf  has  no  authority  to  levy  it  for  the  same  reason;  because 
by  legal  implication  the  power  and  authority  of  the  inferi- 
or court  is  superseded;  and  as  the  sheriff'  derives  his  au- 
ihority  from  the  court,  and  although  the  writ  of  fi.  fa.  is- 
sued while  the  court  had  the  power  to  issue  it,  yet,  as  be- 
fore the  sheriff  had  levied  the  fi.  fa.  the  power  of  the 
court  had  terminated  by  legal  inference  and  intend  ment, 
the  sheriff,  it  he  docs  serve  the  fi.  fa.  acts  without  autho- 
rity, the  writ  of  error  surceasing  all  proceedings.  Hence 
the  doctrine  of  contempt  in  the  sheriff*  if  he  does  after-- 
wards serve  the  execution;  and  hence  also  the  legal  impli- 
cation which  makes  the  writ  of  error  operate  as  a  writ  of 
restitution  of  the  goods  thus  taken  in  execution;  because 
the  sheriff  had  no  authority  at  the  time  to  levy  it,  and  his 
seizure  for  that  reason  was  irregular. 

But  if  the  fi.  fa.  or  ca.  sa.  lias  been  served — if  the 
goods  or  body  of  a  defendant  has  been  taken  in  execution, 
then  the  common  law  writ  of  error  does  not  supersede  the 
execution  thus  executed;  for  it  is  a  principle  of  law,  that 
an  execution  is  an  entire  thing,  and  once  begun  must  be 
completed.  If  a  fi.  fa.  is  levied,  it  is  as  much  the  duty 
of  the  sheriff  to  sell  the  goods,  and  raise  the  money,  as  it 
is  his  duty,  if  he  has  arrested  the  defendant  on  a  ca.  sa. 
to  imprison  him  till  he  pays  the  money.  The  seizure  ^of 
goods,  and  the  arrest  of  the  body,  are  the  principals,  the 
selling  of  the  goods,  or  imprisoning  the  body,  are  the  in- 
cidents. Now,  if  a  writ  of  error  will  supersede  the  sale 
after  a  seizure  of  the  goods  under  ajfi.  fa.  why  not  the. 
imprisonment,  after  the  arrest  of  the  body,  if  it  issued 
)nesne  the  occurrence  of  the  principal  and  of  the  incident? 

After  seizure  of  the  goods  or  arrest,  the  whole^ object  of 
the  judgment  and  execution  is  answered  as  it  respects  the 
plaintiff"  and  defendant.  The  defendant  is  discharged 
from  the  judgment  to  the  extent  of  the  goods  taken,  and 
the  plaintiff  looks  to  the  sheriff  only  for  the  amount;  or  if 
the  body  is  arrested,  it  is  a  like  satisfaction  quo  ad  hoc; 
and  if  then  the  writ  of  error  supersedes  all  further  pro- 
f-eedings,  it  is  only  in  the  suit  between  the.  plaintiff  ;iryi 


•    \-F>  IN  THK  COrilT  OF  APPKAl 

1806.        defendant,  ami  by  the  sc'r/.urc  of  tlio    . 

of  thr  judgment,  or  quo  ad  the  aiuouiit  of  (lie  go-., 
or  bv  the  airo"t  of  tin-    bodv.  all  proceedings    between  the 
plaintiff  and    defendant   arc  at  ad  end,  and   (here    are   MU 
further  proceeding-  Mde. 

This  writ  operate-.  ;>1-  >  as  a  writ  of  restitution,   but  only 
where  an  execution  has  irreynfurtij  issued.  M 
tiirfi/  M-iM'd.      If  doe<  not  operate    as    »:ich  where    t'<; 

',//•//»/•    f()I"  then  the  Vl-'rv  principle   upon  which  it 
operate-,  :i-  a  writ  of  restitution.  iswan<i:ij.      The/ 
tarity  here  meant  is  evidently  determined  and  .IM  r:-t  lined, 
bv  the  time  when    the  writ  of  error  operated,    cither  m»on 
the  jxiwer  of  the  court  it  le  the  fi.  fa.  <ir  upon  the 

power  of  the  sheriff  to  execute  the  writ;  his    -a!.-    in 
case  is  void. 

The  writ  of  error  annuls  no  act  or  proceedin-rs 

/•  ji/lli/  <Ii>n'\      It    l.-.-.vcs    such    arts    in  ;.      A 

.'ion,  if  th«>  jiidjrnenl  i-  if\er-f:l.    OS!* 
course.   Now,  if  the  xvrit  of  error  i  I  self  is  in  all 
to  be  considered  as  a  \viit  of  restitution,  it  is  in  . 
inj  the  writ  of  restitution   before   a  judgment   of  r«  \  cs  <al, 
which  legally  cannot  issue  till  afterwards:  that  is.    to  -ive 
the  remedy  first  for  the  injury  alleged   to  have  been  done, 
and  afteruards  to  determine  whether  the  injury   has   been 
done  or  not. 

The  sheriff  can  maintain   trespass   or  trover  for  injuries 
done    the   property   in  his  posses-ion,    as  she  rift',    even    if 
done  by  the  defendant.     If  the  writ  of  error  is  a  restituti- 
on, as  contended  for,  it  avoi«'  <m  or  pro; 
and  i  f>!!<e<|iicMi!y  his  rijjht  to  sue  for  such  inj-.irv.    Suppose 
the  defendant  has  committed   such  injury,   and  tin-  sheriff 
had  sued  between    the  iTih  and  '71st    of  the  month 
thi^  |:K  |  -                   :>ke.n,    it  i:                    <•    plaintiiV.    ! 
prop'                           'Vfd  and  <•                  <\  bv  the  wii<  of  er- 
ror, and  although  1  il                  |iiired  he  »ho.iUl  protect     the 
and  sue  for  the  injury    done  to  it,    yet  the  law, 
which  n-nuirc- and  enjoins  llii*  dutv.  defeat-  the  o!i'i^-i»'mn 
.    and  nonsuits    i!ic  very   action    it  has 
//IL'  the  dufv,  directed  him  to  brin.-. 

Ot!  •  'iii'jht  easily  be  suggested,  wh«re  ^iuii'.ir  vio 

lations  ol  i-iciple-;  v.  luild  ari-o    f,  om  the 

:   tl;e  L-z-il  oji'Tation  of  a  writ  of  error,  now 
contended  O.r. 


OF  MARYLAND* 

But  although  I  am  for  a  venditioni  exponas  issuing  in  1806. 
this  case,  I  am  not  to  be  understood  as  saying  that  the 
court  would  not  lay  their  hands  upon  some  cases  of  a  like 
application,  where  it  evidently  appeared  that  manifest  in- 
justice might  be  done.  The  money  may  be  ordered  to  be 
brought  into  court,  and  await  the  event  of  the  writ  of  error. 
This  power  should,  however,  be  exercised,  not  upon  the 
suggestions  of  possible  cases,  but  upon  cases  where  there 
exists  well  grounded  apprehensions  of  such  irreparable  in- 
jury, unless  this  power  of  preventing  it  was  resorted  to. 
The  circumstances,  properly  disclosed,  in  such  instances, 
should  be  previously  made  manifest  to  the  court.  This 
power  was  exercised  by  the  court  in  the  case  reported  in 


I  have  avoided,  as  T  stated  at  first,  any  comments  upon 
particular  cases.  Those  which  hinge  either  upon  the  irre- 
gularity of  issuing  the  execution,  upon  the  time  when  a 
writ  of  error  began  to  operate,  or  upon  the  rules  of  court, 
founded  upon  the  statute  of  James,  I  consider  as  not  bear- 
ing upon  this  case. 

I  have,  on  more  than  one  occasion,  examined  into  the 
taw  upon  this  subject.  The  result  of  my  inquiry  has  long 
since  confirmed  me  in  the  opinion  I  have  at  present;  and 
although  I  have  considered  the  cases  cited  by  the  defen- 
dant's counsel  with  attention,  I  find  no  reason  to  alter  that 
opinion,  but  am  more  confirmed  in  it;  but  I  lament  that 
accident  prevented  my  hearing  the  arguments  in  this  case. 

A  writ  of  audita  querela,  or  a  bill  of  injunction,  in  or- 
dinary cases,  will  remedy  any  inequity  in  the  judgment  it- 
self, or  in  issuing  or  completing  the  execution.  But  the 
writ  of  error  cannot  be  construed  to  have  a  more  extensive 
operation  and  effect,  merely  to  reach  the  inconvoniencies 
which  possibly  may  arise  from  its  ordinary  extent  and  ope- 
ration. The  law  has  long  since  define;!  its  limits,  and  the 
eourt  cannot  extend  them.  Other  remedies  are  provided, 
and  open  to  the  defendant's  benefit,  if  the  circumstances; 
of  his  case  require  it,  and  we  cannot  create  a  new  one  to  • 
give  a  more  summary  relief,  even  if  the  circumstance  of 
his  case  would  justify  a  claim  upon  the  score  of  particular 
hardship. 

VEXDITIONI  EXPOXAS  OR.QERKJ5. 


.  n. 


8-t  CA>K>  IN  THE  I'orUT  OF  APPEALS 

1806.  'i.Ki.vir. 
DECEMBER. 

VY^^"-'  APPKM.  from  a  decree  of  the  court  of  chancery,  perpe- 

ColT  tf  tua'ing  an  injunction.     The,  bill  of  complaint  of  ( 


t*'e   Pn'"':it  appellee,   I''*1'  l'ic    l°tn    of  November     I 
•ptJ'.'^f^Im"^^  statc(''  tMat  on''  '•  '"  l"-)''»  purchased  of  Lynch, 

J™wp"'''«kn<   -h.'.  till%  :lPIK<lIa»N  a  tract  °f  lan'l   fl)l"  a  lar^c  Sll|n  of  money, 
i^'.r.n10  Tt"  i£t(l  be  P™'  'V  '"-  ;  tliat  flu'  firsl  instalment  amount  - 

''^''ojlfied  to  LI  ]()!».  and  was  intended,  in  a  great  men-ure,  t 
w"h'£rin£'  07pai(l  out  of  the  first  crop  on  the  land,    and  by  the  sale   of 
Mc'rv.'nV.'nt"  w  »o<l;   that  Li/nrh  declared  that  the   \vo<»d  on  the  land 
»iinM7n"JirhbH  would  nearly  pay  for  the  land,  and  it  was   under-itnod  and 
which  'h^Miiunc-  agreed,  that  the  wood  should  be  cut  and  carried  to  market 
wkrlViMi  *iuu-'  for  the  purpose  of  paying  the   instalments,  (in  aid  of  the 
ihei  junction  hai  crop,)  a»  the  same  should   become  due;  t':at  in  considera- 

been  lo   «tay  <•  v-  . 

c-ition  ai  i«w,  the  tion  of  the  express  agreement  that  hin%.iinorc  should  have 

i  >|iindi'Ml  ni»T  br  i          n      i  i    •  i         • 

diu«  TM!.  wufc  »  leave  to  cut  and  sell  the  wood  in  order  to  meet  the  instal- 

proTito   thai     not 

m.rr    i».   irti-d  ments,  the  complainant   became  bound  in  a  bond  with  him 

thin  remain-  itur  ' 

aft  r^nowincrrr  t0  Lunch,  conditioned  for  tlie  pavment  of  the  fir^t  i: 

«H'»C   c  a-  '     • 


rr 

by  ii, 


_  ••»»£«»'-  ,nent  of  JL  1-200,  with  interest:  that  tlie  complainant  would 

nut   *lw*Ti  •  i 


'  ii  llot  navc  Become  security  for  the  instalment,  but  under  the 
!"  «!)Tthrre  express  proviso  and  engagement  that  fCuiz-wiore  was  to 
putXlw.'"^  '.t  have  leave  to  pay  it  oft"  by  wood;  and  that  the  inducement 
r'^m  u'inilT-  of  his  buying  the  land  was  the  representation  and  state- 
»»uir  fiMrt'h«rd  ment  made  by  Lynch,  that  the  wood  on  the  premises,  so 
d"r  °r  Br~  convenient  to  market,  would  nearly  pay  for  the  land.  That 

fronT'S.  MA,  IN  Kinzxinnre  paid  £.>(X)  on  account  of  the  instalment;  and 

<!><•  lonrt  tnvrn  for  ,  .  .     . 

ihr  pu  Ch»«-  mo-  other  sums  of  money,  and  articles  or  accounts  were  paid, 
bound  •«  Mmy.  winch    Lijivh  ha-;,  or  means  to  apply  to  other  instalments, 

H  h*r>ni  imnrrt—  i          •  mi 

ed  him  w,ik  »r  although  they  were  not  due.  at  the  tune.     I  hat  Ams^smorf 

id*«  Ihiii  ihr    mn-  . 

nrj  mirfci  »-  i»-H  cut  dowH  SoO  COfda  of  wood    to  enable  bin  to  i>ay  up    the 

fn.Tl  llir     tjlf     of 

•ood  ,.nih.  i»n.i.  balance  of  his  fr-t  instalment^   and  to  exonerate  the  com- 

lo  pr«-»»-n'  ihf  <«le 

of  wt.irh  H  iitrr  plainant,  his  snu'tv;  and  tliat  I.unch  fraudulently  medital 

wirni  obt  iiiitil  an  I  •'  * 

ttTKJr*!-  h?!hr  c'l  an  act  "^  oppression   which   he   carried  into    eflect.    |j\ 
cr^7''\n"  'n,"'>rin^i:  ;'!i-iiediately  after  the  first  instalment    be 

r^'V     .  <>n  the  bond  against    Kingtmore  and   the  com- 

*UA".  «ppr«i  ,,r  plainant,  and  filing  a  bill  in  chancery,  and  obtaining  an 
r  «n-«rr  injunction,  \vhuU  j)ievent--«l  /\i>i^.iinorc  from  getting  the 
t  •H*IThv  wood  tr>  market,  and  to  cut  other  uood,  &c.  That  jnd^ 

ment  has  been  obtained  a-.'.iin-t  the  complainant  by  Lynch. 

who  has  not  credited  the  XoOO,    nor  with  such  other  sum«« 

of  money,  wood  or  articles  which  he  may  have  received. 

The  bill  ca.ls  upon  Lynrh  to  answer,  &c.  and  to  declare 


OF  MARYLAND.  ; 

what  sums  of  money,  &c.  he  hath  received.     Prayer  for       180G. 
relief,  and  for  a  subpena,  arid  an  injunction  against  execu- 
tions issuing  on  the  judgment,  &c.      Subpena  and  injunc- 
tion accordingly  issued. 

The  anstver  of  Lynch,  which  was  filed  on  the  9,5th  of 
November  1800,  denies  that  he  ever  declared  or  agreed 
that  the  wood  on  the  land  should  be  cut  and  carried  to 
market  for  the  purpose  of  paying  the  instalments,  (in  aid 
of  the  crop,)  as  the  same  should  become  due  or  otherwise; 
nor  was  any  agreement  ever  made  by  him  with  Kings- 
more^  by  which  the  same  was  to  be  paid  by  wood,  or  that 
wood  should  be  cut  and  sold  from  the  land  for  that  pur- 
pose; and  therefore  no  inducement  from  such  agreement 
could  have  been  the  motive  of  the  complainant  for  becom- 
ing surety  fur  Kingsmore,  no  such  agreement  having  ever 
been  made.  He  admits  that  he  received  £300  9  4,  at 
sundry  times,  as  appears  by  one  of  the  accounts  exhibited, 
which  are  all  the  payments  whatsoever  made  by  Kings- 
more  on  account  of  the  bond  in  which  the  complainant 
is  surety.  He  never  denied  the  payments,  nor  claimed  to 
appropriate  the  same  to  any  other  instalment,  but  hath 
been,  and  now  is,  ready  and  willing  to  credit  the  same  on 
the  bond  for  £1200,  in  which  the  complainant  is  sure- 
ty. That  the  credits  in  the  other  account  exhibited  were 
paid  and  received,  and  applied  to  the  discharge  of  another 
debt  due  to  the  defendant  for  the  articles  mentioned  in 
the  debit  side  of  that  account,  sold  and  delivered,  &c.  and 
had  no  relation  to  the  land  purchased.  That  Kingsmore 
and  the  complainant,  having  failed  to  comply  with  the  con- 
dition of  their  bond,  the  defendant  caused  suits  to  be  in- 
stituted for  the  recovery  of  the  balance  due  thereon,  and 
hath  obtained  judgments  at  law.  That  Kingsmore  having 
proceeded,  against  the  consent  of  the  defendant,  to  the 
cutting  and  selling  timber,  and  other  trees,  growing  on 
the  land,  and  done  other  acts  greatly  endamaging  the  es- 
tate, and  injuring  the  defendant,  he  applied  for  .and  ob- 
tained an  injunction,  &c.  He  denies  all  fraud,  &c. 

HANSOV,  Chancellor,  (November  25th,  1800.)  The 
defendant  having  put  in  his  answer,  and  entered  on  the 
docket  notice  ot  motion  to  dissolve  the  injunction  in  this 
cause  issued,  it  is  at  his  instance  ordered,  that  the  motion 
stand  for  hearing  at  next  term;  provided  a  copy  of  this  or- 


36  CAM:.<  IN  THE  COURT  OF  APPEALS 

1806.        far  be  fenred  on    tin-   complainant   before   the  end  of  the* 
present  month. 

A  service  of  the  above  order   was  proved  to  have   been 
made,  on  the  27th  of  November,  1800. 

II  \NSON,  Chancellor,  (January  6th,  1801.)     The  moti- 
on to  dissolve,  &c.  being  submitted,  &c.     The  Chancellor 
must,  on  this  occasion,  repeat  a  rule,  \\hich  he  lias  always 
adhered  to,  and  which   he  conceived    was  well   known — 
'•Whenever,  on  motion  to  dissolve,  it  appears  from  tin- an- 
swer that  the  complainant  was  entitled   to  an  injunction  at 
the  time  of  obtaining  it,  «'«•  same  shall  continue  until  final 
hearing,  or  further  order,  unless  the  defendant  admit 
ry  thingalleged  in  the  bill,  on  account  of  which  the  injunction 
was  obtained."'    "When  that  admission  is  made,  and  the  in- 
junction has  been  to  stay  execution  at  law,  the  injunction 
may  be  dissolved  with  a  proviso,  that  not  more  be  levied 
Uian  remains  due  after  allowing  every  thing  claimed  by  the 
complainant;  but  when  a  proper  ground  for  the  injunction 
is  admitted  by  the  answer,    and  there  still  remains  a  dis- 
pute between  the  parties,  the  injunction  is  invariably  con- 
tinued until  final  hearing,  or  further  order.     Great  and  ob- 
vious inconveniencies  would  follow  from  a  different  prat •, 
tice.     In  the  present  case,  it  appears  from  the  answer,  that 
the  complainant,   at  the  time   of  obtaining  his   injunction, 
was  liable  to  an  execution,  (if  liable  to  an  execution  at  all,) 
lor  more  than  was  due,  but  in  admitting  this,  the  defendant 
denies  the  other  grounds  of  equity;  .he  denies  that  the  com- 
plainant is  entitled  ti>  all  the  deductions  which  he  claim.-, 
so  that  a  dispute  remains  between  the  parties.     This  case, 
like  many  other  cases,  shows,  that  taking  an  indefinite  judg- 
ment does  little  for  the  plaintiff  at  law,  but  affords  a    f;:ir 
,t  to  the  defendant  at  law  for  further  delay,  and  isal- 
-IMC  to  produce  a  fresh  suit  between  the  parties.     It 
i->  thereupon  adjudged  and  ordered,  lhat  the  injunction,    in 
tus?  heretofore  issued,  shall  continue  until  final  hear- 
ing of  the  cause,  or  further  order. 

The  complainant  entered  a  general  replication  to  theau- 
fcwer  of  the  defendant,  and  a  commission  issued,   and  tr- 
timony  taken  thereunder,  and  the  cause  subntitted,  &c. 

HANSON,  Chancellor,  (October  term  1801.)     It  apjn 
to  the  Chancellor  that  the  defendant,  from  his  conduct, 
ought  to  be  considered  as  having  released  the  complainant 


OF  MARYLAND.  37 

from  his  engagement.  It  is  plain  from  the  evidence,  that  180G. 
the  defendant  had  at  least  impressed  the  complainant,  be- 
fore he  became  security  for  Kingsmore,  with  an  idea,  that 
the  money  would,  or  might  be  paid  from  the  sale  of  timber, 
and  other  wood,  on  the  land,  and  it  is  extremely  probable, 
if  not  certain,  that  the  complainant  was  thereby  induced 
to  become  a  surety.  Whether  or  not,  without  that  induce- 
ment he  would  have  become  security,  is  not  material.  It 
is  certain  that  if  his  engagement  remains  binding,  he  has 
been  or  may  be  greatly  injured  by  the  defendant's  obtain- 
ing an  injunction;  and  the  question  is,  whether  he  shall 
sustain  that  injury,  or  the  defendant,  who  has  done  the 
wrong,  be  deprived  of  one  part  of  his  security?  The 
Chancellor  on  this  question  cannot  hesitate,  and  on  the  pa- 
pers and  proceedings  in  the  cause  does  not  perceive  how 
he  can  do  otherwise  than  decree  a  perpetual  injunction. 
Decreed,  that  the  injunction,  heretofore  issued  in  this  cause, 
be  perpetual,  but  that  each  party  bear  his  own  costs. 

From  which  decree  the  defendant  appealed  to  this  court; 
and  the  case  standing  under  rule  argument  at  this  term, 
the  appellant's  death  was  suggested,  and  the  case  was  en- 
tered abated  (a.) 

Jtidgely,  Johnson,  (Attorney-General,)  and  W.  Dorsey, 
for  the  appellant. 

Key,  for  the  appellee. 

(a)  It  does  not  appear  whether  or  not  the  entry  of  abater/frit  in 
this  case  was  made  by  the  court  after  argument,  or  hy  the  coun- 
sel concerned  In  the  case  of  Roche  vs  Johnson,  et  ux  in  this 
court  sitting  on  the  Eastern  hhore,  it  appeai  e<i  that  at  June  term 
181.6,  the  case  was  standing  under  rule  argument,  when  the  death 
of  the  plaintiff  in  error  was  suggested 

J.  Hayly,  tor  the  defendant  in  error,  submitted  the  question  to 
the  court,  whether  or  not,  this  case  standing  under  rule  argument, 
the  death  of  the  plaintiff  in  error  abated  the  wnt  of  error.  He 
referred  to  the  arts  of  IT^S.  cH  80,  and  1801,  ch  7+,  s.  3H 

THE  COURT  decided  that  the  case  did  not  come  within  the  pro- 
visions of  the  acts  of  1785,  ch.  80.  and  )S01.  ch  7J  But  whether 
the  writ  of  error  abated,  the  case  being  under  rule  argument,  the 
court  were  not  then  prepared  to  decide,  and  the  final  decision  of. 
the  question  they  postponed  for  lurlher  consideration.  After- 
wards,  at  June  term,  1807,  the  cour!  derided,  that  a  writ  of  error 
or  appeal  did  not  abate  by  the  death  of  either  party,  if  the  casa 
•was  standing  under  rule  argument  before  the  death  was  suggested. 
This  decision  was  made  by  the  court  independent  of  the  act  of 
NoTember  1806,  ch.  90,  s.  I'l. 


38  •     -  IN    1  UK  LorUT  OF  Al'I'KAL.- 

1806.  ^1° 

DECEMBER. 

APPF.  \\.  from   the   General  Court.    An   a< 

was  hroii>;lit  on  the  testamentary  boml,  executed  on  the,  KtK 
°f  February  17Tt),  I<>  the  Lord  Prop;  ',r!.ir\  .    on   tin-  < 
|.,"!of  Edward  Mvr«uny  deceased,  by  the  appellant,    (the  de- 

iVudant  in  the  court  below,)  as  his  e\eci:ior.     'I  hi-  d 
?"  daut  pleaded  perfoimance,  to  which   the-  plaint:!^   replied 
..-.„.  nonperfbrmance,  assigning  breaches  that  the  dece.i««-d,    by 
4*"lv<J>t  'iVw^his  will,  bequeathed  to  liis   daughter  Elizabeth,  the  iemalu 
dtetawi  fcct*  'a*  plain  tiiV.  .1.100  on  her  arrival  at  ago,  &.c.  with  itr 
!»f  '  brnrh.  I  iur  and  he  also  beiiueathed  to  his  daughter  Susanna,  .1.100  on 

th        in  in  p  rform- 

-  of  the  c..n<ii-  her  arrival  at  a^e,  &.c.  \vitn  interest,  &.c.  that  died 

of»titi*n,  IH. 


toon  o 


wn  b"nd!  P"«-r  intestate,  whcrebv  one  sixth  part  ol  tlie  said  legacy,  amo 

On  thr    (tin    of 

mtatiri*.  r  piene  jng  ^o  £50,  became  by  the  testator's  wfll  due  and  payable 

miimtini'iarit.  ihr  • 

.nu..  proionrfi  ii«  to  the  said  Elizabeth,  &.c.   And  that  the  executor  had  not 

on  thr  |.«ri  oftnr 


in  ofn»P*'1'  tne  Sa!l^  legacies,  &c.    The  defendant  rejoined  no  as- 
'    '       piJii  **'*»  a\u\  pat/in  rnt  in  the  following  manner,  viz. 

£**  rtAnd  the  said  R.  M.  sailh,  that  the  said  1).  S.  and  E. 
«cefnVJri.xXuft»^I  his  wife,  ought  not  to  have  or  maintain  their  action  afore  - 
i?b"  b?>'iiHi  r,T«M'said  agtiinst  him,  by  reason  of  any  thing  above  by  them  in 
&c?U  {Turrc**11"  replying  alleged,  because  he  saith,  ti  at  no  ;>oods  and  chat- 
•mnuCK  *«•  inr»i-  tcls,  which  weivol  the  said  E.  M.at  the  time  of  his  death, 
equally  «nd  pro-  have  come  to,  or  been  in  the  hands  of  him  the  said  H.  M. 
»«»ri"  Ki.'di'intNu  to  be  administered:  and  that  he  hath  n:>t  in  his  ham!- 

frti  ihi*  r>  t.du<    of 

idministered,  no>-  had  he  on  the  dav  of  the  impetration  of 

»lt<T    |.  a;  mi  nt  of 

^c  •""•a*  tlie  original  writ  in  this  cause,  any  assets,  goods  or  chj 

which  were  of  the  said  K.  M.  at  the  time  of  his  death;  and 
this  he  the  said  R.  M.  i>  ready  to  veiifv:  wherefore  he  prays 
judgment,  whether  the  said  D.  S.  and  K.  his  u  ife,  their 
afon  -  n  against  him  to  have  or  maintain  ouijht,  &c. 

And  the  said  K.  M.  as  to  the  breach  in  the  replication  of 
them  the  >aid  1).  S.  and  E.  his   wife,   above  alleged,  as  to 
the  nonpayment  of  the  said  le-.Mi-ir-.  he  sa'uli.  thai  :' 
I).  S.  and  K.  his  \\ifc,  thi-ir  afore-aid  action  against  him  to 
have  or  maintain,  by  any  thins  therein  alleged,  ought  not, 
BM  he  saith,  that  afler    the  airixal    to  age   of  the  said 
K.  to  \\it,  on  the.  6u.  he  the  said  R.  M.    paid    to  the  said 
K.  whiNt  she  was  sole,  and  before  her    intermarriage  uiih 
tid  I),  the  sum  of  .£300,  in  form  aforesaid  bequeathed 
to  her  liy  the  \villof  the  said  K.  M.  and  theintere-t  thcir- 
OD  due,  as  also  the  said  sum  of  .£50,  the  share  or  proporli 
:   i  he  -aid  K.  of  the  said  £300  bequeathed    to  her  as 
aforesaid,  on  the  death  of  the  said  S.  together  with  interest 


OF  MARYLAND. 

thereon  due,  to  wit,  at  Harford  county  aforesaid;  and  this        1806. 
he  the  said  R.  M.  is  ready  to  verify.     Wherefore  he  prays 
judgment  whether  the  said  B.  S.  and  E.  his  wife,  to   nave 
or  maintain  their  aforesaid  action  against  him  ought,  Sec." 

To  which  the  plaintiffs  surrejoined  assets,  and  nonpay- 
ment"as  follow,  viz,  "And  the  said  D.  S.  and  E.  his  wife, 
as  to  the  first  rejoinder  of  the  said  R.  M.  above  alleged, 
from  having  and  maintaining  their  action  aforesaid  against 
him  ought  not  to  be  precluded,  because  they  say,  that  goods 
and  chattels  which  were  of  the  said  E.  M.  at  the  time  of 
his  death,  did  come  to  the  hands  of  him  the  said  R.  M.  to 
be  administered,  and  that  he  hath  in  his  hands  to  be  admi- 
nistered, and  had  on  the  day  of  the  impetration  of  the  ori- 
ginal writ  in  this  cause,  assets,  goods  and  chattels,  which 
were  of  the  said  E.  M.  at  the  time  of  his  death;  and  this 
the  said  I).  S.  and  E.  his  wife,  pray  may  be  inquired  of 
by  the  country;  and  the  said  R.  M.  in  like  manner,  £c. 
And  the  said  D.  S.  and  E.  his  wife,  as  to  the  second  re- 
joinder of  the  said  R.  M.  above  alleged,  their  action  afore^ 
said  against  him  from  having  and  maintaining,  by  any  thing 
therein  contained,  ought  not  to  be  precluded,  because  they 
say,  that  after  the  arrival  to  age  of  the  said  E.  to  wit,  on, 
&c.  he  the  said  R.  M.  did  not  pay  to  the  said  E.  whilst 
ghe  was  sole,  and  before  her  intermarriage  with  the  said  D. 
S.  the  said  sum  of  £300,  in  form  aforesaid  bequeathed  to 
her  by  the  will  of  the  said  E»  M,  and  the  interest  thereon 
due,  as  also  the  said  sum  of  £50,  the  share  or  proportion 
of  the  said  E.  of  the  said  £300  bequeathed  to  the  said  E. 
on  the  death  of  the  said  S.  together  with  the  interest  there- 
on due,  to  wit,  at  Harford  county  aforesaid;  and  this  the 
said  1).  S.  and  E.  his  wife,  pray  may  be  inquired  of  by 
the  country;  and  the  said  R.  M.  in  like  manner,  and  so 
forth." 

1.  The  defendant  at  the  trial  at  May  term  1803,  pray- 
ed the  opinion  of  the  court,  and  their  direction  to  the  jury, 
that  before  the  defendant  is  bound  to  produce  evidence  on 
his  part  to  prove  that  he  had  fully  accounted  for  the  estate 
of  Edward  Morgan,  deceased,  in  the  replication  mention- 
ed, it  was  incumbent  on  the  plaintiffs  to  prove,  that  assets 
or  personal  property  of  the  deceased  had  come  to  the  hands 
of  the  defendant. 

CHASE,  Ch.  J.  (a.)  The  court  are  of  opinion,  that  it  is 
incumbent  on  the  defendant  to  support  the  issues  on  his 
(a)  Done,  J.  concurred.     Sprigg,  J   dissented. 


CASES  IN  THE  COURT  OF  APPEALS 

1806.       part,  by  proving  that  he  had  not  assets  to  pay  the  legacies 
—  •v—  '       for  which  this  suit  is  brought,  or  that  he  has  p:i'nl  tin-  -aim'. 
before  plaintiffs  adduce  any   proof  to  show   that  asset  >  m 


personal  property  of  /,'.//,'•.//•</  Mur^/in,  had  come  to  the 
hands  of  the  defendant.  The  defendant  excepted. 

2.  The  defendant  then  offered  in  evidence,  that  Edward 
Morgan,  the  testator,  resided  in  Ifarford  county,  having 
due  to  him  at  the  time  of  his  death,  which  happened  in  tho 
year  \7r~\  about  1  1000  from  different  persons,  which  sum 
constituted,  at  the  time  of  his  death,  the  principal  part  of 
his  personal  estate,  and  which  sum  was  afterwards,  in  tho 
1779,  paid  to  defendant,  his  executor,  in  depreciated 
continental  currency,  whereby  a  large  part  of  the  terror's 
personal  estate  was  sunk  and  lost.  The  defendant  further 
offered  in  evidence,  that  lie,  as  executor,  had  equally  and 
proportionally,  or  nearly  so,  distributed  the  residue  of  the 
personal  estate  among  the  different  legatees  named  in  tho 
will  of  the  testator. 

C'II\SK,  Ch.  J.  The  court  are  of  opinion,  that  the  evi- 
dence is  inadmissible,  and  they  refuse  to  permit  it  to  go  to 
the  jury.  The  defendant  excepted;  and  the  verdict  and 
judgment  being  against  him,  he  appealed  to  this  court. 

The  cause  was  argued  at  the  last  term  before  TILGHMAX, 
BUCHANAN,  NICHOLSON,  and  GANTT,  J. 

Johnson,  (Attorney  General,)  and  .Wayntilrr,  for  the  ap- 
pellant, in  their  arguments  contended,  1.  That  on  the  i-,- 
sue  to  the  rejoinder  of  no  assets,  the  onus  probatuli  uason 
the  part  of  the  plaintiffs  below.  '2.  That  if  an  executor 
neglected  to  ret'ini  an  inventory,  he  was  not  bound  for  all 

•- 

debts  ami  3.  That  the  replication  wa>  defective, 

in  not  averring;  that  there  were  assets  sufficient  to  pay  the 
legacies.   They  cited  and  relied  on  the  act  of  October 
c/i.  20.     Parson  vs.  Ilrnry,  5  T.ll.  6.      Bull.  /V.  /'.  140. 
:ngtt.  Pe.tr  r.,.  1  T.  fl.688.  Orrvn.  Km  .  194. 

Qttynn  vs.  TJie  SttiJr,  \  Hurr.  ^  John*.  36.  fltkim  vs. 
//III.  I  Cnii-f,.  -:si.  KG  .«.  M>.  369,  458.  Sinn.  Cl-2,  229, 
401,420,427.  Esp.  Dig.  '^l. 

Martin*  and  T.  Bucluoian,  for  the  appellees  in  their  ai 
guments,  contended,  1.  That  the  plea  of  pcrforman< 
an  admission  of  assets,  and  the  plaintiffs  below  were    not 
bound  to  aver  as»«t»  in  the  replication.     2.  That   tli 


OF  MARYLAND.  41 

joinder  of  no  atsets  was  a  departure  from  the  plea  of  per-       1206. 
forrnance.     3.  That  the  defendant   could   not.   by  his  re- 

. 

joinder  to  the  replication,  put  in  issue  two  separate  and 
distinct  facts.  4.  "Whether  or  not  the  plea  of  no  assets 
was  in  effect  the  same  as  a  plea  of  plene  adminislramt? 
5.  That  on  the  issue  to  a  pica  of  plene  administravit,  the 
onus probandi  was  on  the  part  of  the  defendant.  6.  That 
if  an  executor  neglected  to  return  an  inventory,  he  was 
answerable  for  all  debts  and  legacies.  7.  That  after  ver- 
dict it  would  be  presumed  that  all  essential  evidence  was 
submitted  to  the  jury.  They  cited  and  relied  on  Swin.  401. 
11  Jin.  M.  tit.  Executor,  580,  pi.  152.  2  Show.  163. 
14  Vin.  Ab.  tit.  Inventory,  466.  Toth,  183.  Godb.  145. 
146,  151.  12  Mod.  346.  3  Bile.  Com.  393.  Rushton  vs. 
Jlspinull,  Dong.  683.  Roe  vs.  Hough,  Salk.  29.  Hawk 
vs.  Crofton,  2  Burr.  890.  Swin.  212,  229,  401. 

THE  COURT  OF  APPEALS  concurred  in  the  opinion  given 
by  the  General  Court  in  the  second  bill  of  exceptions,  but 
dissented  from  that  given  in  the  first  bill  of  exceptions. 

JUDGMENT  REVERSED,   AND  PKOCEDENDO  AWARDED. 


M'MF.CHEN  vs.  THE  MAYOR,  &c.  OF  BALTIMORE.         DECEMBER. 

ERROR  to  the  general  court.  This  was  an  action  of  debt  a  eTrpo^tion  can 
brought  the  8th  of  April  1801,  in  the  names  of  the  defend  -SSZ***™?™, 
ants  in  error,  for  the  use  of  A.  Storey,  on  a  writing  obliga-  ""-ney  i'<a?!ym!" 
tory  bearing  date  the  23d  of  January  1799,  executed  by  of  'attorney  under 
Thomas  Yatcs  and  Archibald  Campbell,  with  David  Stewart  »tai?  Qnere 

A      warrant    of 

and  the  plaintiff  in  error,  their  sureties,  to  The  Mayor  and  attorney  need  not 

J  be  spread   on  the 

City  Council  of  Baltimore,  (the  defendants  in  error,)  in  the  l-ec"r.'u 

'    ^  I  ne   appellate 

the  penal  sum  of  830,000  current  money,  reciting,  that  veiI«uteor"hte  '!£ 

cord,      but      -vill 
make  every  necessary  ini^ndment  in  support  of  the  judgment  of  the   in&rjorenurt. 

A  i  ml  foment  by  confession  is  an  admission  of  the  n<lit  ot'llic  nominal  plaintiff  lo  recover  the  penally 
c.f  »  bond  having  a  collateral  condition;  and  wht-thc-  the  Judgment  is  in  thy  n^lit  of  the  plaintiff, 
or  for  the  use  of  another,  is  not  material,  and  cannot  be  a  cause  fur  reversing  it. 

The  court  will  not  so  construe  the  recital  in  a  bond  as  to  defeat  its  operation  and  render  it  a 
nnliity. 

An  act  of  asembly  directing  that  an  auctioneer  sha'l  cfive  bond  before  he  obtains  a  license,  if  the 

,  and 
and 


fact  was  that  the  license  was  obtained  prior  10  tlie  execution  of  the  bond,  it  was  capable  of  proof,  an 
>:i  tlir  power  of  the  defendant  to  have  availed  himself  of  it  on  his  pita  of  general  performance,  an 
insisting  on  that  fact  in  his  rejoinder  to  the  plaintiff's  replication  assigning  the  breach. 

A    surety  U  not  aniuerahle  beyond  his  enofaft'ement. 

Where*  defendant,  having  pleaded  gfiicral  ]iertbnnance  to  a  bond  with  a  collateral  condition, 
ami  without  n  replication  on  the  part  of  the  plaintiff  assigning  breaches,  withdrew  his  plea,  and 
confetsed  juilginent—  /fcW,  that  such  judgment  admits  the  plaintiff's  claim  to  the  extent  of  the  pe- 
nalty of  the  bond  on  which  the  nctinrt  was  brought. 

A  cepeaiing  ordinance  cannot  destroy  or  affect  any  right  which  was  acquired  by  any  person 
under  the  fint  ordinance  before  its  re|w»al 

A  person  \\lio  entrusted  an  •.i-.K-.tione.ir  willi  the  sale  of  gODds,  and  has  a  claim  against  him  for 
money  arising  on  the  sale,  his  a  right  to  ap,tly  for  and  direct  a  suit  ou  llu:  auctiond-r's  bond  for  the 
recovery  of  his  chum.  (Xotc.J 

VOL.    II.  6 


CASES  IN  THE  COURT  OF  APPEALS 

180ft.        "wherean   the   abo\e   bound  Thoimn  J'aten  and  .Archibald 
Cbmpfreffhave  obtained  from  tin1  ma\or  a  license  of  admis- 

,  under  tin*  seal  of  tin'  corporation,  to  u-r  ;intl  e\ 
the  trade  or  busin.  •—  <>f  ;UK  tiomvi  -:  ami  by  an  ordinance 
of  the  corporation,  persons  obtaining  such  license  are  di- 
rected, before  they  enter  upon  the  functions  or  duties  of 
the  office,  to  give  bond  for  the  faithful  performance  of  the 
several  trusts  and  duties  required  of  thrin  by  tin-  af->i 
ordinance;*'  and  conditioned,  "that  if  the  above  bound 
Tfiomaa  Faffs  and  Jrchihuld  Camphell,  do  and  shall  pay 
and  satisfy  all  just  claims  that  may  be  against  them  as  auc- 
tioneers, and  shall  and  v  ill  faithfully  execute  the  office  and 
employment  of  auctioneers,  and  in  all  things  well  and  faith- 
fully perform  the  several  duties  required  of  them  by  the 
ordinance,  entitled,  ,9n  ordinance  for  lirrnxiny  ami  regu- 
lating: auctions  wit/tin  the  c»'/y  of  Baltimore  and  precincts 
thereof,  then  this  obligation  to  be  void,  otherwise  to  be  and 
remain  in  full  force  and  virtue."  Which  bond  wn- 
clorsed,  "Approved,  January  24th,  1799.  James  Cal/mvn, 
Mayor  of  the  city  of  Baltimore."  The  defendant  in  the 
court  below  pleaded  general  performance;  but  afterwards 
relinquished  his  averment,  and  conff-x-d  ju.i-mont,  which 
vas  entered  for  the  amount  of  the  penalty  in  the  bond,  the 
debt  in  the  declaration  mentioned,  and  cost*:  and  \\hich 
i-eement  was  to  be  relenset'  on  payment  of  J54154  SO, 
with  int«-ri"t  thereon  from  the  l>t  of  January  1800,  and 
costs.  The  defendant  afterwards  brought  the  |.re-ept  \\  lit 
of  error. 

The  cause  was  argued  before  CHASE,  Ch.  J.  BUCHANAN 
and  GANTT,  J. 


,  for  the  plaintiff  in  error,  contended,  that  it 
did  not  appear  by  the  record  that  there  was  any  authority 
from  the  Min/nr  and  Cilt/  Council  of  Baltimore  to  autho- 
rise any  person  to  prosecute  this  action.  A  corporate  body 
cannot  appear  in  per>on,  or  by  attorney,  to  prosecute  or 
defend  a  Kuit,  unless  by  letter  of  attorney  under  their  cor- 
porate seal.  1  Blk.  Com.  502.  50,1.  To  enable  an  attor- 
ney to  appear  for  a  corporation,  he  must  be  authorised,  by 
warrant  of  attorney,  under  their  common  seal.  It  doe* 
not  appear  by  the  record  that  there  was  any  warrant  of  at- 
torney authorising  any  attorney,  or  other  person,  to  insti- 
tute or  prosecute  this  action;  if  such  authority  was  give* 


OF  MARYLAND.  48 

it  should  have  been  certified  in  the  record.}  Special  errors,  1806. 
assiarnin«r  thai:  there  was  no  such  warrant  of  attorney, 
were  uttered  at  the  last  term,  but  general  errors  having  be- 
fore  been  assigned,  they  were  reiused  to  be  received  by 
the  counsel  for  the  defendants  in  error.  They  had  notice 
therefore,  that  under  the  general  errors,  the  want  of  a 
Warrant  of  attorney  would  be  relied  on  by  the  plaintiff  iu 
error.  The  special  error,  that  there  is  no  warrant  of  at- 
torney certified  in  the  record,  is  relied  on,  and  now  offer- 
ed to  be  assigned;  and  it  is  prayed,  on  the  part  of  the  plain- 
tiff in  error,  that  a  certioruri  may  issue,  directed  to  the 
keeper  of  the  records  of  the  late  general  court,  requir- 
ing him  to  certify  whether  or  not  there  is  any  warrant 
of  attorney  in  this  action.  That  a  writ  of  certiorari  should 
be  granted  in  this  case,  fully  appears  in  Lill.  Ent.  237, 
253,  3.52,  556,  558,  560, 

Key  and  Harper,  for  the  defendants  in  error.  The  writ 
of  certiorari  ought  not  to  be  granted  for  the  purpose  al- 
leged. The  practice  of  our  courts  is  to  consider  the  ap- 
pearance of  an  attorney  for  either  party  to  be  regular,  and 
that  he  had  sufficient  authority  to  do  so.  In  the  case  of  a 
common  person  it  has  always  been  so  considered,  and  there 
is  no  reason  why  it  should  be  otherwise  in  the  case  of  a 
corporate  body.  The  warrant  of  attorney  is  no  more  ne- 
cessary in  the  one  case  than  it  is  in  the  other.  If  the  writ 
of  certiorari  were  to  issue,  and  it  was  certified  that  there 
was  no  warrant  of  attorney,  this  court  would  presume  the 
attorney  had  authority;  and  if  he  had  no  such  authority, 
the  corporation  had  their  remedy  against  the  attorney  for 
an  improper  use  of  their  name  against  their  consent.  In 
the  case  of  The  Corporation  of  the  Roman  Catholic  Clergy- 
men's Lessee  vs.  Hammond,  1  Harr.  <§"  Johns.  580,  there 
was  no  warrant  of  attorney,  and  no  objection  for  the  want 
of  it  was  made.  It  is  every  day's  practice  to  use  thr 
name  of  the  state  in  actions  on  public  bonds,  without  any 
special  directions  for  that  purpose. 

Ridgely  and  'M'Mechen,  in  reply.  The  case  of  77/c 
Corporation  of  the  Roman  Catholic  Clergymen' 's  Lessee  vs. 
Hammond,  was  an  action  of  ejectment,  wherein  a  demise 
was  stated  to  have  been  made  to  a  lessee,  and  the  action  was 
brought  in  the  name  of  the  lessee.  That  case,  therefore, 
has  no  bearing  on  the  question  before  this  court.  It  is  by 
common  consent  that  an  attorney  appears  for  an  individual 


ill,  CASES  IN  THE  COURT  OF  APPEALS 

18O6.        vrithont  a  warrant  of  attorney.  '  <;i  objection  made, 

v— -v— '      the  court  would  not  permit  it.     The  honk-,   however,  are 

•  •  '  '        explicit,  that  a  corporation.  beinv  an  in\  not 

The  M«yur,  Ute. 

appear  i"i  prison,  but  inn«t  appear  by  attorney,  authorised 
bj  warrant  of  attorney  under  (heir  »-orj,<  and    it 

is  fatal    Wilds  there  be' such   authority.      \Viih   respect  to 
the  mine  Hi  .  .-  an  express  act  of 

assembly  authorising  it  in  suits  on  te-tamentan, ,  admini*- 
tration,  sheriff's,  and  other  public  bonds. 

CM  \sr,  Ch.  J.  The  court  consider  that  it  is  not  Dec- 
ry to  spread  the  \\arrant  of  attorney  on  the  record.     K\ 
thing  will  be  intended  in  support  of  the  judgment,   unless 
the  contrary  appear-. 

AI*Mrrhen,  for  the  plaintiff  in  error,  then  contended— 
1.  That  the  bond  was  not  taken  in  conformity  to  the  ordi- 
nance of  the  Mayor  and  City  Council  of  Ilultiiimrr  of  the 
12th  of  December  1798,  but  was  entered  into  after,  in.-tead 
of  before  the  license  was  granted.  He  referred  to  that 
ordinance:  also  to  The  Inhabitant?)  &,-c.  of  Chitfintlon  v*. 
J'itiliitr»t,  1  .S'/'/A-.  4T-"i,  and  7>V.r  vs.  Croke,  Coirp.  26. 

-2.  That  the  ordinance,  under  which  the  bond  v,a->   tak 
en,  was  repealed  previous  to  the  brin^inu;  thi-.  ;u  tion;  and 
th-'   ivpeaUnv;  ordinance    saved   no  rights,    the  action 

ild  not  be  Mippoi  tr-d.      He    releired  to  the   act  of  1796, 
fh.  68,  a.  8.    Miller's   case,  t  It'.    I!lk.  Hep.   451.   6   Jiar. 
Jib.  tit.  HutHlf,   (D.)  37-2.  and  Hex  vs.  The  Justices  of 
London,  .1  />'"<•/-.  14oG. 

5.  Tliat  liii-  action  i>  stated  to  be  brought  in  the  names 
of  Tl»  Maym-  and  City  Council  of  Jialtiinorr,  at  the  in- 
stance and  for  the  use  of  Alexander  Storey.  lie  referred 
to  Murtijn  r.v.  Jilnd.  1  Doug.  14C2.  The  a  '-inblv 

Mr  t  Mber   1780,   c/i.   30.   May  1781,  c/i.  11;  17H-4,  r/*.  <ii: 
179<),  .  '..   I  ::  ai.il  i.-'.ui,  cli.  68. 

4.  That  in  a  suit  on  a  bond  against  a  surety,  it  must  be 
shown  that  he  is  bound.  That  a  surety  is  nut  bound  be- 
yond the  scope  and  extent  of  his  engagement,  which  are 
confined  to  the  strict  letter  of  the  bond.  He  referred  »•• 
:/i/  r*.  Russell,  3  H'ils.  530.  Sbs»  vs.  Gullotrmj,  .1 
//  ..  >y  M- /f,,i.  204.  The  Stale  vs.  Huilt*,  /In,! 
Strnton  vs.  Kastall,  2  71  It.  366.  Quynn  L-.V.  The  A7ci/c, 
1  ffarr.  4-  Johns.  36, 


OF  MARYLAND.  45 

S.  That  there  was  no  replication  assigning  the  breaches; 
jmd  that  the  confession  of  judgment  did  not  cure  the  de- 
fect. He  referred  to  Qttynn  rs.  The  State,  1  Harr.  <$• 
Johns.  36.  Hardy  vs.  Moore's  Ex'rs,  3  Han.  fy  M*Hen. 
389.  Howie  vs.  The  Stale,  Ibid.  408.  Dorsey  vs.  Steven- 
son's adrn'r.  4  Han.  fy  M'Htn.  351.  Greens  adm'r.  va. 
Couden's  adm'r.  Ibid.  352. 

Key  and  Harper,  argued  for  the  defendants  in  error. 

CHASE,  Ch.  J.  delivered  the  opinion  of  the  court.  The 
court  cannot  travel  out  of  the  record,  but  will  make  every 
necessary  intendment  in  support  of  the  judgment  of  the 
inferior  court  (a.) 

The  judgment  by  confession  is  an  admission  of  the  right 
of  The  Mayor  and  City  Council  of  Baltimore  to  recover 
the  penalty  of  the  bond;  and  whether  it  is  in  their  own 
right,  or  for  the  use  of  another,  is  not  material,  and  can- 
not be  a  cause  of  reversing  the  judgment. 

According  to  the  record,  and  the  nature  of  the  transac- 
tion as  disclosed  by  it,  the  legal  and  necessary  intendmenl 
is,  that  the  bond  and  license  were  given  on  the  same  day, 
and  that  the  execution  of  the  bond  preceded  the  granting 
of  the  license,  because  the  nature  of  the  transaction  re- 
quired it. 

The  court  cannot  so  construe  the  recital  in  the  bond  as 
to  defeat  its  operation,  and  render  it  a  nullity;  such  an  ex- 
position would  be  a  violation  of  the  plainest  principles  of 
law  and  justice. 

If  the  fact  was,  that  the  license  was  obtained  prior  to 
the  execution  of  the  bond,  it  was  capable  of  proof,  and  in 
the  power  of  the  plaintift'  in  error  to  have  availed  himself 
of  it,  by  retaining  his  plea  of  general  performance,  and 
insisting  on  that  fact  in  his  rejoinder  to  the  replication  of 
the  defendants  in  error  assigning  the  breach. 

That  the  security  is  not  answerable  beyond  his  engage- 
ment, is  a  position  that  cannot  be  controverted. 

In  this  case  the  plaintiff  in  error,  as  security,  reposed  a 
confidence  in  the  principals,  the  auctioneers,  and  not  in  the 
mayor;  and  actually  engaged  that  the  auctioneers  should 
pay  and  satisfy  all  just  claims  against  them  as  auctioneers; 

(a)  If  by  any  means  whatever  the  plaintiff  can  be  supposed  to 
have  a  title  as  laid  in  the  declaration,  as  this  is  after  verdict,  we 
will  hold  this  judgment  right,  and  there  is  no  inconsistency.  1 
It'ils.  I.  3  Burr.  1725,  7. 


CASES  IN  THK  COURT  OP  APPEALS 


1806.        and  the  j'ldzmont,  by  confession,  admit*  the  claim  of  7V* »» 

^- v— — '       Mui/nr  dint  ('it i/  Council  of  Jinltiiiwn\  against  the  plaintift" 

"  in  error,  to  the  extent  of  the  iienaltv  of  the  bond,   subject 

Dickwn 

to  the  release  on  the  record. 

The  repi-alins;  ordinance  cannot  destroy  or  affect  any 
right  which  was  acquired  by  any  person  under  the  first  or- 
dinance before  the  repeal  thereof. 

JUDGMENT    AFFIRMED  (&) 

(n  )  The  court  were  al*o  of  opinion,  (though  at  this  point  wa* 
not  before  them,  they  o mi' ted  it  in  the  wiitten  opin  on  W.ich  was 
delivered,)  that  every  person  who  entrusted  the  auctioned*  with 
the  tale  of  goods,  and  had  a  claim  against  them  tor  money  arising 
on  the  sale  of  the  goods,  has  a  right  to  apply  to  the  mayor  and 
city  con  no  I  to  direct  a  suit  to  he  mHiluted  on  the  bond  of  she 
auctioneers  for  the  recovery  ot  his  claim,  and  the  corporation 
could  not,  consistent  with  their  duty  under  the  ordinance,  refuse 
such  application,  and  might  be  enjoined,  by  suil  in  chancery,  to 
allow  the  person  to  use  their  name  to  prosecute  his  claim. 


DECEMBER.  HAFFNER'S  Devisees  vs.  DICKSOX'S  HEIIU 

f7  APPEAL  from  a  decree  of  the  court  of  chancery.  The 
ll  was  filed  by  the  present  appellee,  (the  complainant  in 
wi  the  court  of  chancery,)  on  the  9th  of  July  1792,  against 
'in  f»-  Frederick  Hajfncr,  who  died  without  answering  the  bill, 
jMM*Mf  ,  bat  £MA*  and  a  bill  of  re\iv«»r  was  afterwards  in  May  1796,  filed 
•*Mibr^t«'<a>afMB>t  ''is  son*  and  devisees,  the  present  appellants.  The 
»."t^ihf  c««ts7nd  facts  stated  in  the  original  bill,  bill  of  retivor,  and  in  an 
MitKtnrffewM  amended  bill,  are,  that  Frederick  Uqffher,  on  the  llth  of 

dctr«-<d    llml    On- 

pomp't.     .h.Miia  May  1764,  entered  into  a  bond  to  James   Dickton,   the 

<•  hi«  CtKU  ID 


er  of  the  complainant,  conditioned,  that  if 
liis  heirs,  &c.  "do  and  shall  well  ami  truly  convey  and 
make  over  unto  the  above  named  Jamex  /Jickson,  his  heirs, 
&c.  by  a  good  and  sufficient  deed,  of  one  full  half  of  the 
Jtesitrvci/  on  the  Dixcovcry,  an«l  now  patented  and  called 
I/fiff'ner's  (V/oj'cf,  on  or  before  the  first  day  of  July  next  en- 
^-uin^  the  date  hereof,  then,"  &c.  At  the  foot  of  the  bond, 
and  before  the  signature  of  the  obligor,  it  was  tfius  written: 
"It  is  to  be  remembered,  that,  brlmr  -i-nin-  ami  M-alin;r, 
it  is  agreed,  that  out  of  the  above  tract  100  acres  shall  In: 
laid  off  for  Daniel  Mwldts,  and  then  one  half  of  the  re 
mainder  i»  to  be  conveyed  to  James  Dickson."  That  the 
land  is  called  and  designated  in  the  bond  of  con\ey.i:u  c 
by  a  wrong  name.  T!ia>  Huffner  originally,  on  the  10th  of 
November  1752,  obtained  a  grant  for  45  acres  of  land,  call- 


OP  MARYLAND.  47 

ed  Hammer's  Discovery.  That  a  warrant  afterwards  issu-  1806. 
«d  on  the  1st  of  February  1760,  and  renewed  on  the  22d 
of  September  1761,  to  resurvey  the  land  under  the  name  of 
Haverner's  Discovery.  That  a  certificate  was  returned, 
dated  the  I Oth  of  December  1761,  and  patent  issued  to 
Haffner  for  the  land  by  the  name  of  The  Resurvey  on  Ha- 
venear's  Fancy,  on  the  29th  of  September  1762.  That  by 
the  table  of  courses  annexed  to  the  certificate  of  Tlie  Re- 
survey  on  Haveneur's  fancy,  it  appears  that  Haverner's 
Discovery  was  the  land  resurveyed;  and  by  the  rent  rolls 
it  appears  that  The  Resurvey  on  Havanor's  Fancy  was 
originally  called  Havanor's  Discovery,  and  contained  45 
acres.  That  the  land  patented  under  the  name  of  The  Re- 
survey  on  Havenear^s  Fancy,  and  the  land  which  Hajfner 
obliged  himself  to  convey  by  the  bond  of  conveyance,  is  one 
and  the  same  tract  of  land,  and  not  different.  That  Haff*- 
ner,  being  seized  and  possessed  of  the  land,  came  to  an 
agreement  with  Dickson  relative  to  the  sale  of  a  moiety  of 
the  same,  deducting  100  acres,  and  that  Dickson  paid  the. 
full  amount  of  the  purchase  money  agreed  on,  and  in  con- 
sideration thereof,  Hajfner  executed  the  bond  to  convey 
the  moiety  to  Dickson  in  fee  simple.  That  Dickson  died, 
after  the  payment  of  the  purchase  money,  and  the  date  of 
the  bond,  in  possession  of  a  moiety  of  the  land,  and  left 
the  complainant  his  heir  at  law,  who  is  in  equity  and  jus- 
tice entitled  to  a  conveyance  thereof,  pursuant  to  the  bond. 
That  Haffner  is  since  dead,  having  by  his  will  devised  the 
land,  of  which  the  complainant  claims  part,  to  his  sons, 
the  defendants,  in  fee  simple,  as  tenants  in  common,  &c. 
Prayer — that  it  be  decreed  that  the  defendants  convey  a 
moiety  of  the  land,  according  to  the  bond  to  the  complain- 
ant, in  fee  simple,  together  with  such  further  and  other  re- 
lief in  the  premises  as  complainant's  case  may  deserve,  &c. 
The  answers  of  the  defendants  state,  that  their  father  did 
own  a  tract  of  land  called  Havener's  Discovery,  but  no 
warrant  of  resurvey  was  obtained  by  him  to  resurvey  that 
tract;  but  it  was  to  resurvey  Havenar's  Fancy,  and  under 
that  warrant  a  survey  was  made,  a  certificate  returned,  and 
a  patent  granted  to  their  father,  for  a  tract  of  land  called 
The  Resurvey  on  Havenearjs  Fancy,  containing  695  acres, 
of  which  their  father  was  seized  and  possessed  until  his 
death;  and  since  his  death  the  defendants  have  been  in  the 
<s?ixin  and  possession,  and  are  now  seized  and  possessed 


4S  CVSKSINTHI  i  OK  APPEALS 

thereof.      That  tl>  re'il 

into  bet ween  their  father  and  Dii-ksnu,  :unl  onlv  know  what 
land  he  sold  to  I)ir.kton,  if  unv,  from  the   pap- 
by  tin-  t  omplainant;  and  thev  do  not  know,    nor   ran   they 
admit,  that  it  wa-  i.l   '/'//«  /.' 

jR»Jry.  for  the  conveyance  of  \\liii  h  the   bond    was   :;i\en. 
That  they  understood  from  tin  ir  lather,  (hat  1  •  u- 

'•••I  a  Mirxey  m.-Miy  yars  a«;o,  he  included  more  land  there- 
in  than  he  thought  him-vll  able  to  pay  tor  in  the  land  of- 
fice, and  therefore  agreed  with  /)!ck.ion  to  let  Iriiu  have 
half  the  land  so  taken  up,  provided  he  w;>uld  p:tv  half  the 
caution  money,  and  other  expenses  attending  the  securing 
n;ul  rnakirii;  |)-.'if»'i-t  the  title  to  the  same.  That  t'tn-v  '»t'«en 
heard  their  father  »av,  that  it  \vas  in  co' 
•sjreement.  and  upon  no  o(h««r  consideration  whatsoever, 
lh.it  he  passed  hi-  !)^n-l  to  D'ulson  for  the  conveyance  of 
lain  lands  in  the  Uond  iner>t  u'lich  I>o7id  they 

h:t\  Tliat  tliev  have  hivn  informed,  &c.  that 

when  th'-  rertilicate  of  niirvev  for  tl-,"  !:-nd  thus  rontracted 
for  was  10  tlic  land  (»!lire,  IH>-kstni  \\a«  either  un- 

alile  or  unwilling  to  pav  his  preportion  or  dividend  of  the 
e^penseH  necessary  to  secure  the  land;  and  that  their  father 
was  compelled  so  to  do,  and  did  actuallv  mike  sacrifices 
to  borrow  and  procure  the  monev  to  secure  tlie  land,  and 
did  actually  pav  for  the  whole  himself:  and  (hat  their  father 
never  did  nneive  fr«n:i  I)i>l,-^>n  any  va'na'«!e,  or  other  c«m- 
sideration,  for  the  l>ond  which  he  executed  in  manner  afore- 
1.  That  thev  have  also  understood  from  iheir  father, 
that  no  writing  of  anv  kind  e\er  parsed  to  him  fniiii  Dlrk- 
xo,  -inn  tl^e  land:  that  their  father,  hrin^  ;,ii  illiier 

ate  man.  and  repo>iiir.:  -m-e    in    />/-/. -wii,  t-»i.k 

no  writin-j;  fVo:u  him  on  the  husinr-.s,.     T!n-\  do  not  l.rl 
that  Dirkum  e^^M •  ha<l  n  of  anv   lands    \\hatsoever 

in  conseipienre  of  tin-  horn!:  on  the  contrary  they  have 
been  informed,  &c.  that  /;;,'.  ,D«,  well  kfiowirv^  he  UMS  not 
entitled  to  have  a  con  •  did,  dmii>^  hi- 

vhole  life  time,  a-V.  i!,-ir  faiher   to  <  I       \   in- 

sist upon  the  act  of  parliament,    <>i  »iis, 

made  in  the  £lst  year  of  the  n-i^u  d  Kin-  Jmnr.,-  the  f. 
and  pray  the  benefit  of  That  a!  :ieat 

igth  of  fhne  which  hath  elapned   sime  the  »•-.••<  nii<.n  ol 
the  l>oinl,  and  b> •'  iii<    per- 

mce  thereof,  they  are  informed  the  complain.mi  i~  n- ' 


OF  MARYLAND. 

imthled  to  relief,  and  they  rely  on  the  said  length  of  time       1806. 
to  bar  the  complainant  of  the  relief  prayed,  and  pray  to 
have  the  benefit  thereof  at  the  hearing,  as  fully  as  if  they 
had  pleaded  the  same,  and  relied  thereon  by  way  of  plea,  &x. 
Commissions  were  issued,  and  testimony  taken  thereun- 
der, proving  the  hands  writing  of  the  witnesses  t:>  the  bond, 
who  were  dead.  That  a  warrant  of  resurvey  was  taken  out 
on  the  27th  of  November  1784,  in  the  joint  names  tf  Haffncr 
and  Dickson,  at  their  request,  to  resurvey  a  tract  of  land 
called  Hrffncrs  Fancy,  but  which  was  not  executed.  That 
the  complainant   was  brother  and  heir  at  law  of  Dickson. 
That  in  the  year  1784,  on  executing  a  commission  to  per- 
petuate the  bounds  of  the  land  called   The  Resurvey  on 
Ifavaner's  Fancy,  issued  by  and  in  the  name  of  Frederick 
Havaner,  the  complainant  claimed  a  conveyance  for  his 
share  of  the  land  of  Haffiur,  according  to  the  bond  which 
lie  exhibited  to  Hqffner,  executed  by  him  to  Dickson;  that 
Haffiier  acknowledged  it,  and  said  Dickson  had  paid  all  the 
money  that  could  injustice  be  demanded  of  him  for  his  part 
of  the  land.     That  Huffner,  in  stating  objections  to  his  con- 
veying the  land,  said   he  had  paid  taxes  on  it.     That  as 
there  was  some  dispute  about  some  part  of  the  land,  and  as 
it  was  intended  by  both  to  sell,  it  was  finally  agreed  to  wait 
the  result  of  that  dispute.  That  at  another  time  the  complain- 
ant called  on  Haffne.r  for  a  conveyance  of  one  half  of  the 
land  Ilaffner  then  lived  on,  who  alleged  he  had  paid  taxes, 
&c.  as  much  as  he  thought  the  land  was  worth.     That  com- 
plainant proposed  to  make  him  payment  for  all  the  money 
he  had  advanced  on  the  land,  on  his  making  a  conveyance, 
which  Haffner  refused  to  do.     That  Haffmr  admitted  that 
the  land  he   lived   on  was  the  land  the  complainant  was 
entitled  to,  if  he  was  entitled  to  any,  and  is  the  same  land 
mentioned  in  the  bond  of  conveyance,  and  that  it  is  u  tract 
of  land  called  TTie  Resurvey  of  Havenear's  Fancy.     That 
Haffner  afterwards  promised  to  settle  the  business  in  a 
peaceable  manner  as  soon  as  he  settled  some  dispute  about 
the  land  with  one  Shehawn. 

HAXSON,  Chancellor,  (July  19th,  1803.)  This  cause  com- 
ing on  to  be  heard,  was  most  ably  debated  hy  the  counsel 
on  each  side.  The  Chancellor  has  never  heard  a  cause 
which  appeared  to  him  more  difficult  to  decide,  so  as  to  se- 
cure an  affirmance  by  the  court  of  appeals.  However  the 
VOL.  IT.  7 


50  CASES  IN  THE  COl  RT  OF  APPEALS 

1806.  Chancellor  may  differ  in  sentiment  from  that  tribunal,  he 
has  always  considered  it  his  duty  to  determine  according 
to  their  knoun  opinion,  lint  in  various  causes,  which  have. 
been  carried  10  that  tribunal,  and  in  which  the  question 
\vas,  whether  or  not  an  agreement  respecting  land  should 
be  enforced,  they  have  decided,  without  laying  down  their 
principles  for  the  future  government  of  the  chancellor.  In 
the  present  instance,  if  he  could  divine  how  the  court  of 
appeals  would  decide,  lie  would  certainly  decide  according- 
ly, as  indeed  he  would  in  every  other  case.  Sometime! 
it  has  appeared  to  him  that  the  court  of  appeals  has  con- 
sidered it  proper  to  enforce  almost  any  agreement  what- 
ever. At  other  times  it  has  appeared  to  him  that  they 
have  adopted  a  strictness  beyond  any  tiling  to  be  met  with 
in  the  books. 

That  the  agreement  which  Dickson  prays  this  court  to 
enforce,  is  uncertain,  and  that  it  has  lain  so  long  dormant, 
as  to  have  no  title,  agreeably  to  established  principles,  to 
be  enforced,  has  been  contended  on  the  part  of  the  defen- 
dants. It  i>  al-;>  on  their  part  contended,  that  there  is  no 
sufficient  proof  of  its  having  been  performed  on  the  part 
of  James  Dickson,  under  whom  the  complainant  claim*. 
If  the  defendants  are  right,  the  complainant  is  not  entitled 
to  relief.  But  the  complainant  denies  every  allegation, 
and  the  parties  are  at  issue  upon  them. 

It  has  always  been  a  practice  of  the  Chancellor,  and  he 
probably  will  always  consider  it  right,  where  a  cause  is 
doubtful  to  himself,  where  his  decision,  whatever  it  may 
be,  is  in  his  own  opinion  just  as  likely  to  be  reversed  as  to 
be  affirmed,  and  where  he  can  propose  such  a  compromise 
as  appears  to  him  likely  to  coincide  with  the  judgment  of 
honest  sensible  arbitrators,  chosen  by  the  parties,  it  has 
always,  in  such  cases,  been  his  practice  to  propose  that  u 
decree  pa--  by  consent,  which  shall  at  once  end  all  con- 
li  o\  crey. 

In  the  present  case  he  proposes  that  the  parties  agree, 
l>y  writing  here  filed,  that  a  decree  pass  to  the  following 
effect:  1.  That  each  party  bear  hi-  o\\n  costs.  2.  That 
the  defendants  convey  to  the  complainant,  two  thirds  of 
the  land  in  question;  that  is  to  say,  two  thirds  of  what  the 
complainant  claims:  or  that  the  said  land  be  sold  by  atrus- 
i|»p«)inied  by  the  Chancellor,  who  shall  act  under  the 
Chancellor's  control,  and  report  his  sale,  which  shall  not 


OF  MARYLAND.  51 

be  valid  until  ratified  by  the  Chancellor,  and  who  shall  re-  1806. 
ceive  a  commission  as  in  similai-  cases;  and  that  the  nett 
proceeds  shall  be  divided  between  the  complainant  and  the 
defendants,  two  thirds  to  the  complainant,  .and  the  other 
third  to  the  defendants.  3.  The  complainant  shall  release 
to  the  defendants  all  claim  to  profits  on  the  land  by  him 
claimed. 

The  Chancellor  requests  that  a  copy  of  this  recommen- 
dation be  served  by  the  complainant  on  the  defendants,  un- 
less he,  (the  complainant,)  disapproves  of  it.  If  he  shall 
declare  in  writing  to  the  Chancellor  his  disapprobation,  or 
if  the  defendants,  on  being  served,  shall  not,  within  one 
calendar  month  after  service,  express  their  approbation,  the 
Chancellor  will  proceed  to  decree  to  the  best  of  his  judg- 
ment. The  complainant  is  requested  to  decide  as  early  as 
conveniently  may  be. 

HANSON,  Chancellor,  (August  1st,  1803.)  The  com- 
plainant having  by  his  petition  to  the  Chancellor,  and  filed 
in  the  cause,  agreed  to  waive  all  right  to  a  decree  to  ac- 
count for  the  rents  and  profits  of  the  land  in  controversy, 
reserving  to  himself  all  right  and  equity  to  an  account  of 
those  rents  and  profits  in  any  future  bill  for  an  account  for 
the  same,  Decreed,  that  the  defendants  shall  forthwith,  by 
a  deed  or  deeds  of  bargain  and  sale,  to  be  duly  executed, 
acknowledged  and  recorded,  convey  unto  the  complainant, 
and  his  heirs,  as  tenant  in  common,  ene  undivided  moiety 
or  half  part  of,  in  and  to,  all  that  tract  of  land  m  Frederick 
county  called  The  Resurvey  on  Ifavenear's  Fancy,  which 
•was  originally  granted  unto  Frederick  Ifavenear,  now  de- 
ceased, by  patent  bearing  date  on  the  29th  day  of  Septem- 
ber 1762;  provided  always,  and  liberty  is  hereby  reserved 
unto  the  complainant,  to  file  a  new  bill  or  bills  against  the 
defendants  for  an  account  of  the  rents  and  profits  of  the 
said  land;  and  also  reserving  to  the  complainant  all  equity 
which  he  now  hath  or  may  have  to  an  account  of  the  said 
rents  and  profits;  the  Chancellor  so  decreeing,  because  the 
complainant  hath  filed  a  writing  to  that  purpose,  and  the 
Chancellor,  therefore,  being  excused  from  giving  any  opi- 
nion on  the  subject  of  profits.  Also  decreed,  that  the  de- 
fendants and  the  complainant  shall  each  bear  his  own  costs 
in  this  suit  expended.  .-.MM^  JL  illM 


53  CASES  IN  THE  torilT  OF  APPEALS 

1806.  In  decreeing  thus,   the  Chancellor  flatters  himself,  that 

he  pursues  the  opinion  of  the  court  of  appeals,  or  rather 
the  principle*  which  must  he  supposed  lo  have  pm-minl 
them  in  the  la,te  case  of  Browne  vs.  Browne,  (1  //.?//.  A,- 
Johns.  430;,)  and  he  takes  the  liberty  of  referring  to  his 
own  recommendation  in  ihis  court  tiled,  which,  as  he  was. 
informed  by  the  complainant's  counsel,  would  be  rejected 
by  the  complainant.  He  repeat-,  thai  in  decreeing,  as  he 
does,  he  conceives  that  he  pursues  the  principles  wlm-h 
governed  the  court  of  appeals  in  the  recent  cause  of 
Browne  va.  Browne,  in  which  his  decree  was  reversed. 
He  may  be  mistaken  with  respect  to  those  princij.i 
•which  indeed  the  court  of  appeals  has  not  explained;  but 
he  flatters  himself  that  the  important  tribunal  of  the  court 
of  appeals,  on  reflection,  will  perceive  the  propr'u -\\  of  al- 
ways explaining  the  grounds  on  which  they  reverse  a  de» 
cree,  in  order  that  the  Chancellor  may  in  all  future  causes 
obey  them,  as  his  duty  requires  him  to  do.  It  is  notori- 
ous, that  in  many  causes  a  variety  of  points  of  law  and 
equity  are  disputed  between  the  parties;  a  simple  affirm- 
ance or  reversal  does  not,  cannot  inform  the  Chancellor 
on  which  of  the  points  they  have  decided  the  cause. 

From  which  decree  the  defendants  appealed  to  this 
court,  ami  the  cause  was  argued  before  CHASE,  Ch.  J.  lir- 
CHANAX,  and  GANIT,  J. 

Johnson,  (Attorney  General.)  for  the  appellant,  con- 
tended, 1.  That  it  was  not  a  matter  of  course  to  decree  a 
specific  performance  of  a  contract.  He  cited  2  P<> 
Cont.  2i21,  233,  242.  :  lirn.  415.  2  Com.  I)i<;.  tit.  Chan- 
cery, (2  C.  1C.)  Buxton  vs.  Lister,  3  .It It.  383.  2.  That 
the  length  of  time,  before  the  application  for  relief,  ought 
to  prevent  its  being  granted.  He  referred  to  2  Potr.  on 
Cont.  260. 

Key,  for  the  appellee,  in  his  argument  cited  Peake's 
EridL  56,  57. 

THE  COURT  OF  APPEALS,  Decreed,  "that  the  decree  of 
the  Chancellor,  so  far  as  the  same  relates  to  the  cosi-  in 
the  court  of  chancery,  be  and  the  same  is  hereby  reversed; 
and  that  the  appellee  recover  against  the  appellant*  the 
costs  by  him  expended  in  the  court  of  chancery."  Also 


OF  MARYLAND. 

decreed,  "that  the  residue  of  the  said  decree  be  and  the  1806. 
same  is  hereby  affirmed,  except  so  far  as  the  said  decree 
operates  to  compel  the  appellants  to  convey  any  interest 
in  the  one  hundred  acres  of  land  to  be  laid  oft*  for  Daniel 
Maddes,  mentioned  at  the  bottom  of  the  condition  of  the 
bond  executed  by  Frederick  Haffncr  to  James  Dickxon, 
dated  the  llth  of  May,  1764,  and  exhibited  in  the  bill 
filed  in  the  cause;  and  as  to  the  said  one  hundred  acres  of 
land,  the  said  decree  is  reversed." 

"And  for  the  purpose  of  carrying  this  decree  into  effect,-' 
it  was  further  decreed  "-that  the  Chancellor  pass  a  decree, 
thereby  directing  the  appellants  forthwith,  by  a  deed  or 
deeds  of  bargain  and  sale,  to  be  duly  executed,  acknow- 
ledged and  recorded,  to  convey  unto  the  appellee,  and  his 
heirs,  as  tenant  in  common,  one  undivided  moiety  or  half 
part  of,  in  and  to,  all  that  tract  of  land,  lying  in  Frederick 
county,  called  The  Resurvcy  on  Havenear's  Fancy,  which 
was  originally  granted  unto  Frederick  Havenear,  now  de- 
ceased, by  patent,  bearing  date  on  the  29th  day  of  Sep- 
tember 1762,  except  one  hundred  acres  of  the  said  land, 
stated  on  the  bond  of  conveyance  executed  by  the  said 
Frederick  Haffncr  to  James  Dickson,  dated  the  1 1  th  of 
May  1764,  and  exhibited  in  the  bill  in  this  cause,  to  be 
laid  oft*  for  Daniel  Maddes;  and  the  deed  or  deeds,  to  be 
executed  in  pursuance  of  the  said  decree,  to  contain  an 
exception  as  to  the  said  one  hundred  acres.  And  by  the 
said  decree  the  Chancellor  shall  direct  the  said  appellants, 
to  pay  to  the  said  appellee,  the  costs  in  the  court  of  chan- 
cery." And  it  was  further  decreed,  "that  the  appellee  re- 
cover against  the  appellants  the  costs  by  him  expended  in 
this  court." 


KEEFER  vs.  YOUNG.  DECKMREH. 


APPEAL  from  Frederick  county  court.      An  action  of    p?ro1 

,  ndmititd  to  prove 

dower  was  brought  by  the  present  appellant,  who  was  thetlia"htll""iK"ul- 

•e       c  Tt        i     T.T    /.         i  ted  to  tliehusliaiid 

wite  ot  Battle  Keefer,  deceased,  "for  the  third  part  of  50  acres  "f  a  «"t»-.an«iant,ir 

«•  i        j          •   i       i  '  "  the  same   land   of 

ot  land,  with  the  appurtenances,  lying  and  being  in  Frede-*^^**"**- 
rick  county,  consisting  of  part  of  a  tract  of  land  called  (lo*e?"t*rn™  °- 
Ohio,  and  part  of  a  tract  of  land  called  JFertimburgli,  which  S?""7  ^^  "32 
she  claims  as  her  dower  of  the  endowment  of  the  said  Bar-  ^TdSSfctolS 
th  Keefer,  her  late  husband,"  &c.  The  defendant  plead-  ££?ft' 
ed,  1st.  That  Earth  Keefer  was  not  *eized,  &c.  And  2<L  fiT'SS 


coi'.f,  (ncte) 


VSES  IN  THE  COrUT  OF  APPEALS 

1806.  That  he  was  alive  at  the  time  of  the  impel  rat  ion  of  the 
writ.  Issue  was  joined  to  the  fn>t  plea;  and  replication 
that  Bartlc  Keefer  was  not  alive  at  the  time,  &c.  as  to  the 
other  plea,  and  issue  joined. 

1.  The  demandant,  at  the  trial,  to  prove  that  Burth- 
Ktffer  was  stiy.ed  ol  the  tract  of  land  called  n'rftimlwr£h, 
offered  in  evidence  a  patent  of  a  tract  of  land  called  ll'u-- 
tinburgh,  granted  to  Bartel  A'crfer  on  the*  17th  of  July  1765; 
and  proved  that  the  patentee  of  ffPerfthfargA,  entered  upon 
the  land,  and  was  seized  thereof,  as  the  law  requires.  She 
then  offered  a  patent  for  a  tract  of  land  called  ff'hilcrbacky 
granted  to  George  Hainan  on  the  13th  of  November  1759, 
for  27  acres;  and  that  the  patentee  entered  upon  the  land, 
and  was  seized  thereof  as  the  law  requires.  Also  a  deed 
from  George  Herman,  the  patentee  of  JHiilerback^  to 
Bartel  Ceefer,  dated  the  20th  of  August  1765.  And  that 
the  grantee  entered  upon  the  land  in  the  deed  mentioned, 
and  was  seized  thereof  as  the  law  requires.  And  she  of- 
fered to  prove  that  the  grantee,  in  the  deed  last  mentioned, 
and  the  patentee  in  the  patent  of  If  ertinburgh,  was  the 
same,  and  not  divers  or  different  persons;  and  that  the 
land  called  H'trlinburghm  the  patent,  and  the  land  called 
U  irllmburgh  in  the  declaration  mentioned,  is  the  same 
land,  and  not  divers:  and  that  George  Haiman,  the  paten- 
tee af  the  tract  of  land  called  11  ift'unburgh,  and  the  gran- 
tee in  the  deed  before  referred  to,  is  the  same  person,  and 
not  divers.  She  also  proved  that  Bartle  Kcrfcr  was  seized 
in  his  demesne  as  of  fee  of  the  said  tract  of  land  called 

•Irthurgh,  and  that  he  died  seized  thereof  in  the 
1777,  and  before  the  impetration  of  the  original  writ  in 
this  cause.  She  also  proved  that  she  was  the  wife  of 
J'urlfe  Kerfer,  lawfully  accoupled  in  holy  matrimony.  She 
then  offered  parol  evidence  to  prove,  that  the  tenant  in 
this  action  holds  the  land  called  Wirtimlnirgk,  and  the 
part  of  Ohio,  conveyed  as  aforesaid  to  Hurtle  Keefery 
claiming  the  same  under  the  heirs  of  Bartle  Keeftr.  The 
defendant  then  prayed  the  opinion  of  the  court,  and  their 
direction  to  the  jury,  that  the  evidence  on  the  part  of  the 
demandant  did  not  support  the  declaration,  and  that  the 
demandant  could  not  recover  under  the  same.  Of  which 
opinion  the  county  court,  [Clagett,  Ch.  J.  and  Shriver, 
A.  J.]  were,  and  so  directed  the  jury.  The  demandant 
«cepted. 


OF  MARYLAND.  55 

•2.  The  demandant  then  prayed  the  opinion  of  the  court,  1806. 
that  on  the  issues  joined  in  this  cause,  she  hath  shown 
good  title  to  recover  her  dower  of  the  tract  of  land  called 
IVerlimburgh,  in  the  declaration  named;  which  opinion 
the  county  court  refused  to  give.  The  demandant  except- 
ed;  and  the  verdicts  and  judgment  being  for  the  defendant, 
she  appealed  to  this  court. 

Shaaff  and  Brooke,  for  the  appellant,  cited  2  List.  286. 
10  Coke,  117,  Pilford's  case. 

Taney  and  F.  S.  Key,  for  the  appellee. 

THE  COURT  OF  APPEALS  reversed  the  judgment  of  the 
County  Court,  disagreeing  with  that  court  in  the  opinions 
expressed  in  both  of  the  bills  of  exception. 

PROCEDENDO 


fa)  Neither  in  this  case,  nor  in  that  of  Keefer  vs.  Marker, 
were  any  damages  laid  in  the  declaration.  The  case  of  Keefer 
rs.  Marker  was  also  an  appeal  from  Frederick  county  conrt,  in  an 
action  of  dower.  To  the  declaration  there  was  a  general  demurrer, 
and  joinder  in  demurrer,  and  the  county  court  ruled  the  demur- 
rer good,  and  gave  judgment  for  the  defendant;  from  which  judg- 
ment the  demandant  appealed  to  this  court.  And  at  this  term  the 
court  of  appeals  reversed  the  judgment,  and  entered  a  judgment 
for  the  demandant  tor  dower  arid  cost;. 


DANNISON  vs.  ROBINETT,  et  al.  DECEMBER. 

APPEAL  from  a  decree  of  the  Court  of  Chancery,    dis-  u^er^,f  Pe™.°,n» 

*f  '  IlHVl  np;   ulr  rfjUllH- 

missing  the  bill  of  complaint  of  the  present  appellant.  ^d(  'jj'ta^osie?- 
The  bill  states,  that  William  Smith,  one  of  the  defendants,  J^JT'  /  Tot 
being  seized  in  fee  of  a  tract  of  land  called  Sugar  Tree  f Si^f^lSE 
Camp,  lying  in  Washington  county,  containing  100  acres,  legal  'estate  conf- 

,  .  ^     .  .  ,        mencine       aubse- 

mortgaged  the  same  to  James  Bryant  in  1788,  in  conside-  quenttotheequit- 
ration  of  his  having  paid  debts  for  him  to  the  amount  of  £39.  * 
That  Smith  had  three  sons,  named  Christian,  Philip  and 
Peter,  (also  defendants,)  and  he  was  indebted  to  Christian 
in  the  sum  of  £109  13  10,  as  ascertained  by  a  settlement 
made  between  them  on  the  22d  of  May  1789.  That  lie 
had  no  means  to  discharge  the  debt,  except  by  a  sale  of  his 
equity  of  redemption  in  the  land.  That  it  was  agreed  be- 
tween the  father  and  his  sons  that  the  former  should  sell 
to  them  the  land,  and  a  bond  of  conveyance  was  executed 
for  the  purpose  dated  the  22d  of  May  1789.  And  it  was 
also  agreed,  that  on  the  sons  Philip  and  Peter,  paying  to 


CA.-r.*  IN  THE  COURT  OF  APPEAL* 

*  :w°  tnir<ls  of  tne  dcl)t  due  to  him,  they  ware 

equally  to  have  the  land.       From  the  time  of  the  contract, 
to  the  vrar  17-.53.  the  three  M»n-  ]i<  MC  land.    While 

they  were  in   p,»sse>M..::.  ,//,  Another  defen- 

dant.) who  had  a  knowledge  of  their  equitable  right,  pur 
chased  the  same  land   from  //'/'///</?/<  .V/m.'/;.   and  obtained 
a  deed,  dated  the  Sih  of  October  1793.     That  Peter,  one 
of  the  sons,  was  induced    b\  to  believe  his  title 

'ivalid,  and  he  contracted  with  him  for  the  same  for 
the  sum  of  £15,  for  which  a  note  was  liiven,  but  the  mo- 
ney has  never  been  paid.  That  Josht'ct  fl'ilxon  (another 
defendant,)  paid  to  James  Hryant  the  money  due  on  the 
mortgage,  and  obtained  an  assignment  of  the  same.  That 
Robinclt,  ha\in;i  obtained  the  deed,  applied  to  t\vo  n.iiui-,- 
tratcs  for  a  writ  of  forcible  tntrtj  ouid  detainer,  availing 
himself  of  a  period  \\hon  the  a-ms  could  obtain  no  counsel, 
und  they  were  induced  to  believe  they  would  be  turned  out 
of  po.-«4fs.ii<jn,  an-l  th.'refure  gave  up  the  pos>i  -<i<m.  Tljat 
them  i  \\iio  attended  \verc  tho>c  before  whom  tin- 

deed  was  executed,  and  one  of  them  the  agent  of  Jtobi- 
nrlt.  That  on  the  '29th  of  November  1703,  Joshua  and 
Isaac  Wilson,  (also  defendants,)  in  consideration  of  S20 
paid  to  Christian  Smith,  obtained  an  assignment  of  his  in- 
terest in  the  bond  of  conveyance,  and  on  the  19th  of  June 
1794,  for  the  like  sum  paid  by  Danniaon,  (the  complain- 
ant,) reas*iu;nod  the  bond  to  him.  That  Peter  Smith,  on 
the  l»t  of  March  1791,  and  Philip  Smith,  on  the  18th  of 
April  1794,  assigned  their  interests  in  the  bond  to  the 
complainant  f..r  the  like  consideration.  That  JJnbinett, 
after  he  obtained  the  deed,  paid  to  Joshua  Jl  i/vun  the  mo- 
n^y  he  had  paid  on  the  moil_-ii;<%,  and  received  an  as-i^n 
ment  That  the  complainan;  !  to  Jlobi,iftt  the 

,:  il  interest  due  on  the  mortgage,    and  tendered 
and  claimed  a  eoiiM-vanee,    b;r    'iril   linhirtill    refu «.«•(!    to 
•  the  morn".-,  in-  e\«  e'i'e    the  ileed.      The    object    of 
the  bil  >l)tain  that  conveyanee,  and  for  Robindl  t<> 

\\  for  th«'  pri.-':i-i  of  liie  l.did    from  the   time  he  took 
po--"— -ion  of   it. 

T!»c  nnstrrrs  of  all  tl.e  defendant*,  except  Kobinrtt,  ail- 
nut  the  fa< '  •)  ili'-  '>ill.      He    ,l,n.<i   not   admit    the 
'•  the  sons,  nor  /  c»nrri/ti,,rr,   or  nix  I. 
f  the  same,  if  it  diu  exist,   before   the  deed  to  him- 
self. 


OF  MARYLAND. 

The  complainant  offered  in  evidence  sundry  depositions        1806. 
of  witnesses,   taken  under  a  commission  issued   from  the      *— > — ' 

„  Daunison 

Court  of  Chancery,   to  prove — 1.  The   execution    of  the 

J  T  r  ^  Robmett 

bond  of  conveyance.  2.  The  consideration,  possession, 
and  notice  to  Roblnett.  3.  The  assignments  executed  by 
the  three  sons  of  fVUlioan  Smith  to  the  complainant. 

HANSON,  Chancellor,  (October  term,  1803.)  The  an- 
swer of  the  principal  defendant,  who  is  called  on  to  con- 
vey, &c.  expressly  denies  knowledge  of  an  equitable  title 
in  the  persons  under  whom  the  complainant  claims,  and 
there  is  not  testimony,  which,  according  to  the  principles 
of  this  court,  is  sufficient  to  refute  the  answer,  taking  the 
•whole  of  the  testimony  into  consideration.  Decreed,  that 
the  bill  be  dismissed,  but  without  costs.  From  which  de- 
cree the  complainant  appealed  to  this  court. 

The  cause  was  argued  in  this  court  before  CHASE,  Ch.J. 
TILGHMAN,  BUCHANAN,  NICHOLSON,  and  GANTTV  J; 

Johnson,  (Attorney-General,)  for  the  appellant,  contend - 
deQ — i .  That  a  prior  equitable  right  to  land  will  prevail 
over  a  legal  title  acquired  with  a  knowledge  of  that  equi- 
table right. 

2.  That  where  the  person  having  the  equitable  interest 
is  in  possession  of  the  land,  there,   although   in  fact  his 
equitable  interest  is  not  known,   still  it  will  prevail',   when 
established,  over  the  legal  estate   commencing   subsequent 
to  the  equitable  interest.     In  other  words,   the  possession 
alone  will  exclude  the  legal  right  from  being  protected,  on 
the  ground  of  being  ignorant  of  the  equitable  right.     He 
cited  2  Fanbl.  155,  (note  m);   Smith  vs.  Low,  1  tftk.  490; 
and  1  Pow.  on  Coni.  302. 

3.  That  the  appellant  may  recover  two  thirds;  that  is, 
the  proportions  of  Christian  and  Philip,  supposing  the  con- 
duct of  Peter  may  exclude  him,  or  his  assignee,   from  the 
recovery  of  the  other  third. 

4.  That  if  Peter,  at  the  time   of  the   conveyance   from 
tfilliam  Smith,  was  ignorant  of  his  right,  and  that  Robi- 
nctt,  or  his  agent,  contributed  to  induce  him  to  the  belief 
that  he  had  no  right,  his  one  third  may  be  recovered. 

5.  That  the  assignee  of  Christian  alone  is  entitled  to  a 
eonvcyance  of  the  whole  land,  until  Peter,  or  his  assignee, 
pays  his  portion  of  the  debt. 

VOL.  it.  8 


r,s         CASES  IN  THE  COURT  OF  APPEALS 

1806.  H»at   the  appellant  is  entitled  to  an  account  of  the 

profits  to  sink  the  mortgage  debt.     He  referred  to  Jarrclt 
vs.  JTcst,  in  this  court. 


y  for  the  appellees.  A  decree  for  a  specific  exe- 
cution of  a  contract  is  not  ex  debito  justitise,  but  at  tin- 
discretion  of  the  court.  An  agreement,  to  merit  the  in- 
terposition of  a  court  of  equity  in  its  favour,  must  be  fair, 
reasonable,  bona  fide^  certain  in  all  its  parts,  mutual,  u>»- 
ful,  made  upon  a  good  or  valuable  consideration,  not  mere- 
ly voluntary,  free  from  fraud,  &c.  2  Pow.  on  Cont.  221. 
Unless  a  contract  has  all  these  ingredients,  a  court  of  equi- 
ill  not  decree  a  specific  performance.  The  Chancel- 
lor decreed  in  this  case,  upon  the  ground  that  notice  was 
not  sufficiently  proved.  And  in  support  of  the  decree  dis- 
mi--ing  the  bill,  it  is  contended  —  1.  That  there  was  no 
contract  proved.  2.  If  there  was  a  contract,  it  was  a  vo- 
luntary :md  fraudulent  one.  3.  The  bill  has  not  charged 
any  thin-;  like  notice  to  Robinett.  He  referred  to  1  Pow. 
on  drnt.  .'in-:,  liutchrr  rs.  Stapfly,  1  Vern.  365.  Rorret 
liomeserra,  Bunb.  Rep.  94.  %  Eq.  Co.  M.  17,  48. 

THE  COURT  OF  APPEALS  affirmed  the  decree  of  the  Court 
of  Chancery. 


DECEMBER.  AVoRTmxr.rox,  <t  «/.  vs.  BICKNELL. 

A  executed  a      APPEAL  from  a  decree  of  the  Court  of  Chancery.     Tlir 

morgratr  •"   M.  "f  * 

rrai  and  prnonai  ^\\\     filed  bv  the  present  appellees   in  1801,   stated    that 

property,    to    te- 
c«re  the  payment 

of  a  turn  in  the  f  V*  eturmt  money,  and  it  wai  aftcrws rdt  a|rreed  between  them.  ili»t  the  pertontl 
property  ihouW  15  irleatcd,  on  A'«  r. id., TMIIL-  <m  i'i.' mortiraicc  that  it  un<  a  */"•<•"•  <l<-l>i-  A  afler- 
ward*  con»eyi-d  hii  equity  of  rcil.  i  <• .  wlm.  mi  ih<-  rrpn^entationi  of  n.  of 

the  Mia  dur  oil  the  mor'ic  <  •  O.,.i,I.I   n»t  !>••  n-li-nvil  unlm  C  exeetiinl  in   him    hit   bund 

tor  that  ram,  did  i-cr.  MMI  .it  law  wa«  bn.u  ;'.•.    -i.,!    pidgnMBt 

rrndtrrd  th>r<    •:      On  •  bi  1  in  rhaneerr  by  C,  an    minnciioii  %>•<    obtain-  , ocrc.lmp  at 

law.  The  auditor  »a«  ordered  totiate  the  raortirage debt  ineontinental  moayy,  rrdarin^  it  into  §pe- 
n<-  at  I  lur  1.  milh  iiiti-mt,  and  er  «lc;  and  on  »ueh  tutement  it  appeared  tbat  Uie 

debt  wai  orer  paid.    Decreed,  that  tin-  injuncuuii  br  perpetual. 

Harol  rridenrr  adroittrd  to  prore,  tbat  a  debt  it-cured  by  a  mortpar,?  wai  continental  money, 
-J  —  "-I  a  »pMJt  dctit. 


Wkere  there  i%  a  mort|ra|^e,  with  a  prnonal  coTmant  hy  the  raortRtfror  that  he  will  pay  th«  mo- 
•ry,  and  beaiti^rt  hi«  eqyity  of  rrdeapiimi.  n  h--  a  competent  witmrti  for  the  aiiigitcc  to  prove 
that  the  mow  T  loaned  wat  continental  mouey?  f/uere. 

The  aiurjwr  of  a  moits^.  i> « niiil.-d  to  (he  tame  relief  that  the  mortgagor  would  hare  been  en- 
titled  to  ajratMt  the  manage*. 

A  aVerr*  in  favour  of  «He  nmfilainant,  but  vit/ttut  nrtt,  wai  on  appeal  by  the  firfmHant,  revrrted 
t*  ooata, and  aatnawd  at  to  the  roi4ac;  aad  tcsncA  ttut  the  curoplauiant  ibould  itxuTer  lu»  M»t* 


OF  MARYLAND.  59 

Richard  Robinson,  being  seized  in  fee  of  several  tracts  of       1 8Q6. 
land,  on  the  1st  of  May  1778,  borrowed  £170  of  the  then 

J  Worthington 

current  money,  of  B.  T.  B.  Worthington,  whose  execu- 
tors  and  representatives  the  appellants  are,  and  executed  a 
mortgage  of  his  said  lands,  and  sundry  slaves,  &c.  for  the 
payment  of  the  said  sum  of  money,  with  interest  thereon, 
on  the  1st  of  September  then  next  ensuing.  That  Robin- 
son being  about  to  leave  the  state,  on  the  6th  of  October 
1782,  applied  to  Worthington  to  release  the  personal  pro- 
perty mortgaged,  as  the  land  was  amply  sufficient  for  the 
payment  of  the  mortgage  debt,  which  he  refused  to  do  un- 
less Robinson  would  endorse  on  the  mortgage  the  sum  of 
money  then  due  in  gold  and  silver,  which  he  agreed  to, 
and  the  sum  then  stated  to  be  due  was  £145  3  3  gold  and 
silver,  current  money.  That  on  the  15th  of  October  1782, 
Robinson  assigned  all  his  right,  and  equity  of  redemption 
in  the  mortgaged  premises,  to  Ninian  Riggs.  That  Ro- 
binson, after  the  mortgage,  became  indebted  to  the  com- 
plainant, Bicknell,  for  money  actually  paid  and  advanced. 
That  Robinson,  in  consideration  thereof,  and  in  conse- 
quence of  a  contract  between  the  complainant  and  Riggs, 
agreed  that  the  right  of  redemption  in  the  mortgaged  pre- 
mises should  be  conveyed  to  the  complainant,  and  a  deed 
was  accordingly  executed.  That  the  complainant  having  ob- 
tained the  conveyance,  and  being  interested  in  the  payment 
of  the  mortgage  debt,  was  applied  to  by  Worthington  on  the 
subject,  who  represented  to  the  complainant  that  there  was 
then  due  from  Robinson  to  him,  for  principal  and  interest, 
the  sum  of  £171  6  0,  on  the  26th  of  February  1791,  and 
that  the  complainant  could  not  and  should  not  obtain  the 
benefit  of  the  equity  of  redemption  by  a  release  of  the 
mortgage,  unless  he  gave  him  his  bond  for  that  sum  of  mo- 
neyj  and  that  the  complainant,  confiding  in  the  represen- 
tations of  Worthington,  gave  his  bond  accordingly.  TI;at 
Worthington  is  since  dead,  and  J.  Jfor£fon.g-/0»,oneofthe 
defendants,  is  his  executor,  who  has  brought  an  action  at 
law  on  the  bond,  and  obtained  a  judgment.  That  the  ex- 
ecutor, and  the  other  defendants,  on  the  25th  of  July  1795, 
filed  a  bill  against  Robinson,  Riggs,  and  the  complainant, 
for  a  sale  or  foreclosure  of  the  squity  of  redemption  of  the 
mortgaged  premises.  That  by  the  answers  to  that  bill, 
and  the  evidence  taken,  it  appears  that  the  sum  loaned  by 
Worthington  to  Robinson,  and  the  mortgage  taken,  was  to 


GO  CASES  IN  THE  COU11T  OF  APPEALS 

1806.  secure  tin-  payment  of  continental  money,  and  that  tin-  <nu 
due,  calculating  its  worth  by  the  scale  of  depreciation, 
with  legal  interest,  had  been  paid  off  or  reduced  to  the  sum 
of  £9  5  2  current  money,  on  the  13th  of  December  1798. 
That  the  executor  of  Jl'm-thinzfon  is  indebted  to  the  com- 
plainant in  the  sum  of  £13  17  6,  current  money,  for  arti- 
cles charged  in  the  account  exhibited.  Prayer  fur  a  per- 
petual injunction  against  execution  U>um^  on  tin-  judg- 
ment at  law,  and  to  compel  a  release  of  the  mortgaged  ^>  ••- 
raises,  &c. 

On  the  coming  in  of  the  answers,  and  on  the  testimony 
taken  in  the  cause,  amongst  which  was  that  of  Robinson, 
the  .iitditor  was  directed  to  state  an  account  between  the 
parties.  He  made  various  statements,  to  which  both  par- 
ties excepted,  and  by  the  Chancellor's  order  he  made  one, 
wherein  the  money  loaned  to  Robinson  on  the  mortgage, 
viz.  £  1 70  continental  money,  w  -as  charged  against  MickuLll 
at  5  for  1,  with  the  interest  thereon,  and  after  crediting 
payments  made  at  various  time?,  and  the  costs  on  the  bill 
filed  by  the  executors,  &.c.  of  Worlhington,  which  they  had 
dismissed,  left  a  balance  due  to  the  complainant,  ou  the  1st 
of  March  1804,  of  £10  111,  current  money. 

HANSON,  Chancellor,  (7th  March,  1804,)  dtcrrtd,  that 
the  injunction  issued  be  perpetual;  and  that  each  party  pay 
his  own  costs,  &c.  From  this  decree  the  defendants  ap- 
pealed to  this  court. 

The  causo  was  argued  before  CHASE,  Ch.  J.  Been 
and  NICHOLSON,  J. 

h'i'lpely,  for  the  appellants,  contended,   1.  That  all    the 
-arv  and  proper  parties  are  not  before  the  court.    He 
referred  to  HiiuCa  Prac.  2.  2  Eq.  Ab.  170.  Pre.  in  Clian. 
83. 

2.  That  BirkntH  is  not  entitled  to  relief  on  account  of 
the  transaction  between  Robintton  and  Itort/iinxtoti,  be- 
cause lie  is  no  party  to  the  contran.  and  has  no  privity  of 
interest,  he  not  representing  Rolri,, 

?>.  That  if  Hicknrll  has  a  prnitv  of  interest,  and  is  en- 
titled to  Robinson's  equity,  yet  there  is  noli-zal  te*timon\ 
in  the  causr  to  prove  the  facts  alleged  in  the  bill,  hivauM-  Ko 
linson,  the  only  person  produced  as  a  witness,  is  incompe 


OF  MARYLAND. 

tent  on  two  grounds,  1st.  He  is  interested,  because  there  is  a  1 807. 
personal  covenant  iu  his  mortgage  to  Worthtngton,  that  he 
will  pay  the  money;  and  2d.  Because  he  is  swearing  to  im- 
peach the  security  he  gave,  and  to  invalidate  his  own  act 
and  deed.  He  cited  Gilb.  L.  E.  122.  Heskfth  vs.  Brad- 
dock,  3  Burr.  1856.  Walton  vs.  Shelly,  1  T.  7?.296.  Buck- 
land  vs.  Tankard,  5  T.  S.  578.  Goodlittle  vs.  Bailey, 
Cowp.  600.  1  Fonbl  188.  1  Han.  Chan.  305,  613. 

Johnson,  (Attorney  General,)  for  the  appellee,  referred 
1o  Piddock  vs.  Broivn,  el.  al.  3  P.  Wins.  289.  2  Com.  Dig. 
96. 

THE  COURT  OF  APPEALS  decreed,  that  so  much  of  the 
decree  of  the  chancellor,  as  granted  a  perpetual  injunction 
on  the  judgment  in  the  bill  and  proceedings  mentioned,  be 
affirmed',  and  that  that  part  of  the  said  decree,  by  which 
each  party  was  to  pay  his  own  costs,  be  reversed-,  and  also 
decreed,  that  the  appellants  pay  to  the  appellee  all  the  costs 
incurred  by  him  in  the  court  of  chancery,  and  in  this 
court. 


POLUTT  vs.  PARSONS.  JUNE,  'E.  S.) 

APPEAL  from  the  General  Court  from  a  judgment  of  af-  Property  scquir- 

,      *  e<l  by  an  insolvent 

firmance  on  an  appeal  to  that  court  from  Worcester  count v!ItrbtoLr%  sfu'r  h(" 

1  f  J  mis    betn    legally 

court.     The  plaintiflf  in   the  county  court,  (now  appellee,)  fileeh,^KdenT'idaew' 
brought  an  action  of  trespass  vi  et  armis  against  the  defen- "f^}"^,,^.^* 
dant,  (the  appellant,)  for  taking  his  goods  and  chattels,  and  £^,^'0,± 
converting  them,  &c.     By  a  statement  of  the  facts  submit- 1££$  ^{^ 
ted  to  the  court  for  their  opinion,    it  appears  that   Samuel  J^cted  dpriorCO"J 
Smyly  obtained  a  judgment  in  the  general  court  against  it^t'Tsll".fbl?IIu 
Parsons.     After  which  judgment  Parsons  was,  onthelSthtyn^«ri*/ac*M, 
of  November  1801,  regularly  discharged  under  the  act  for ./<?«'«*  havWim-- 
the   relief  of  insolvent  debtors,  passed   in   1774,  c/ii.  28.  *  y<*r  art  •  jby 
That  afterwards,  in   1803,  a  writ  of  fieri  facias  was  regu- 
larly  sued  out  upon  the  above  mentioned  judgment,    and 
was  directed  and  delivered  to  Pollitt,  then  being  sheriff  of 
Worcester  county,  who,  in  virtue  of  that  writ,   seized  and 
took  into  his  possession  the  goods  and  chattels  mentioned  in 
the  declaration,  and  sold  them  at  public  sale.     That  the 
said  goods  and   chattels  were    acquired  and  possessed  by 
Parsons  after  his  discharge,  by  his  own  industry,  and  not 


CAS !•>  I N  THE  COURT  Ofr  APPEALS 

1807.        k5*  gift,  deriae,  beqntit,  or  in  a  course   of  d  - 

bution.  Upon  this  statement,  the  county  court,  [Polk, 
Ch.  J.  «ra\e  judgment  for  the  plaintiff,  and  the  defendant 
appealed  to  the  general  court,  where  the  cause  was  argued 
at  September  terB  1804.  The  general  court  affirmed  the 
judgment  of 'th«  county  court,  and  said  that  property  ac- 
quired by  an  insolvent  debtor,  after  he  has  been  legallv 
discharged  under  the  insolvent  law  of  1774.  cli.  28,  other- 
\\i-e  than  by  "descent,  gift,  devise,  bequest,  or  in  a  course 
of  distribution,"  is  not  liable  for,  or  subject  to,  debts  con- 
tracted prior  to  his  discharge;  and  if  such  property  i-  liable, 
it  cannot  be  affected  by  a  fieri  facia \,  without  a  scire  faci- 
as having  previously  issued,  if  a  year  and  a  day  have  elaps- 
ed. The  appellant  appealed  to  this  court,  and  the  cause 
was  argued  by 

J.  Bayly,  for  the  appellant,  and  by 
Jf'ilson,  for  the  appellee. 

THE  COURT  OF  APPEALS  affirmed  the  judgment  of  af- 
firmance. 


JUXE,  (E.  S.)  GREENE  vs.  MUSE,  et  at.  Lessee. 

WfcnebJi£[ni;       Arrr.Ai.  from   the   Cloreral  Court.      The  appellee,    (the 

laintift'  in  the  court  below.)  brought  an  action  of  fjrctment 

Md'tN.^rt'irf'ut'j  ^or  a  lr:lc^  °'  'an<'  ( 'ailed  Widow's  Purchase,  lying  in  Dor- 

r  county,  containing  1000  acres.    A  case  \vas  B< 
'or  the  court's  opinion,  which  raised  the  <|uestion,  how  far 
^4^  J2rtit''|Ki';',!!i  the  arknovvii-d-ment,  as  made  by  a  feme  covert  grantor  t.> 
thirti^*^.'   Jid  a  deed  of  bar^ajn  and  sale,  was  effectual  to  pass  her  inte- 
i^nn'nlniy.H  D  tlie  land  conveyed?     It  was  a  conveyance  from  Jo~ 

witho'iTt"  "u'ni ic'  seph  Diiflin,  and  Eleanor  his  wife,  to  Thoma*  Bonrkf,  uu- 
Uy  ih."  .  !er  whom  the  defendant  in  the  court  below   claimed,  for 

fr»'  part  of  the  tract   of  land,    for  which    the  ejectment. 


•nrr. 

•  nW     hiving   SI.MI- 

.    »••«•    «ck- 


The  acknouled-ment   i*  as  follows,  to  wit: 

"eord'ii.^"I'"rth'  Dorchfslcf  to  wit:   He  it  remembered,  that  on   the 

,  '«-"utr'iv  day  and  vear  above  written,  [1st  of  August  1778,  the  date 
Z£  fc».nwMkrU  of  the  dee(l,  j  personally  appeared  before  us,  the  si'1 
*«•  yc  iv  frme  two  of  the  justii't^  of  the  peace  for  the  county  of  Dorrhis- 
/<r,  the  above  named  Joseph  Muffin,  and  Elcnor  his  wife, 


OF  MARYLAND.  € 

and  acknowledged  the  within  deed,   and  all  and   singular       1 807. 
the  within  lands  and  tenements   in  the   within   deed  con-      (^v""~ 

...  r  Partridge 

tained,  to  be  the  right,   title,    interest  and  estate,   or  the  v» 

»         -  Partridge 

•uithin  named  Tlwmas  Bourke,  his  heirs  and  assigns,  for 
ever,  agreeable  to  the  true  intent  and  meaning  of  the  with- 
in deed;  the  same  Elenor,  wife  of  the  same  Joseph  Baffin, 
being  first  privately  examined  by  us  separate  and  part  from 
her  husband,  whether  she  did  the  same  freely,  voluntarily, 
and  of  her  own  accord,  without  being  induced  thereto  by 
the  ill  usage  or  threats  of  her  said  husband,  or  for  fear  of 
his  displeasure,  and  having  assured  us  she  acknowledged 
the  said  deed  freely  and  voluntarily,  according  to  the  act 
of  assembly  in  such  case  lately  made  and  provided,"  &c. 
Which  was  signed  by  the  justices.  The  general  court  at 
April  term  1805,  gave  judgment  on  the  case  stated  for  the 
plaintiff',  and  the  defendant  appealed  to  this  court,  where 
the  cause  was  argued  by 

Bullitt  and  /.  Bayly,  for  the  appellant,  and  by 
Martin  and  W.  B.  Martin,  for  the  appellee. 

THE  COURT  of  APPEALS  affirmed  the  judgment   of  the 
General  Court. 


PARTRIDGE'S  Adm'x  vs.  PARTRIDGE'S  Adm'x.          JUNE,  (E.  S.) 
APPEAL  from  Dorchester  county  court.     The   appellant,    A  devise  of  land* 

,  t  t      .    .  •         f     r  'to  a  creditor   doe» 

(the  administratrix  of  Jonathan  Partfadgej  brought  an  ac-  not  extinguish  » 

.  .  debt     or       ciaim 

tion  of  assumpsit  against  the  appellee,  (the  administratrix  wIVleh  he  J'ast  •• 
of  Isaac  Partridge;)  and  at  the  trial  of  the  cause,  estab- 
lished by  testimony,  that  Isaac,  in  his  life-time,  was  in- 
debted to  Jonathan,  in  his  life-time,  in  a  certain  sum  of 
money.  The  defendant  then  offered  in  evidence  the  will 
of  the  said  Isaac,  dated  the  IS  of  December  1801,  where- 
by he  devised  to  his  father,  Jonathan,  (the  plaintiff's  intes- 
tate,) and  his  heirs,  two  tracts  of  land  containing  about  206 
acres,  and  also  the  use  of  all  his  other  lands  for  life.  He 
also  bequeathed  to  his  said  father,  all  his  personal  estate, 
and  appointed  him  executor  of  his  will.  It  was  admitted, 
that  the  whole  personal  estate  of  Isaac  was  not  more  than 
sufficient  to  pay  ten  shillings  in  the  pound,  and  that  Jona- 
than had  no  benefit  from  the  bequest  of  the  personal  es- 
tate mentioned  in  the  willj  but  that  the  same  was  expend- 


CASES  IN  Tin-:  conn-  M  APPEALS 

1807.       ed  l»y  the  payment  of  the  debts  of  Isaac.     That 

than  accepted  and  held  the  lauds    devised  t.)   liiiu   by    th>. 
will,  under  and    in  virtue   thereof,   which    was  of  great  i-i 
value  than  the  debt  chained   by  the  plaintiff.      The    dt:fen 
th'.nt  then  prayed  the  court  to  direct  tlie  jury,  that  the  debt 
or  sum  of  money  claimed  by  the  plaiiitift',  was  extinguished 
by  the  said  will,  and  ought   not  to  be  recovered.     Which 
prayer  the  court,   [/WA-,  Ch.  J.  Done  and  Robins,  A.  J.] 
granted,  and  were  of  opinion  that  the  debt  or  sum  of  mo- 
ney claimed  by  the  plaintiff  was  extinguished  by   the  will. 
and  ought  not  to  be  recovered,  and  did   accordingly  so  di  • 
rect  the  jury.     The  plaintiff  excepted;  and  the  \erdictand 
pi.  lament  beiny  against  him,   he   appealed   to   this  court, 
where  the  cause  was  argued  by 


J.  ttuylu,  for  the  appellant  and  by 
//'.  Ii,  .  Marl  in,  fur  the  appellee. 

TIIK  COUUTOF  APPEALS  Reversed  the  judgment  of  the 
county  court,  and  awarded  a  ProceJetido. 


JUNK  (|tf  S.)  If  vMrso.v  vs.  EDEI.EX. 


A  contract  for      APPEAL  from  the  Court  of  Chancery.     The   bill  of  the 

tV-    piir-hni*      of  * 

.•i,«  /*  complainant,  (the  now  appellee,)  stated,  that  in  .September 

'..r  »  rnlu«- 

?lVeX'i''^iii'!iw!f'  l~9-*»    ne  Purchased   a  part  of  a  tract  (if  land,  1  ym'j;    Tn 
Hitrrni    m    the  prince  George's  county,  called  Sloney  ffarbout,    contain- 

»i  •!»!«•    fiom    Inr  J  *  «/ 

r'oTr  "£.  in%  ^);5  acres,  from  a  certain  Ihnoiii  If.  fl'mfr.  at  the  price 
IbnVy  £'  m'.t  plaa  of  '  i'5  per  acre;  and  on  the  3-4th  of  December  !T9r,  Hade 
wh'^iV'n^y  ?»vc  '»m  fi'H  ant'  absolute  |x>ssession  thereof,  and  that  he 
J.^'.'-H.'.'ii-.i'io'H  has  ever  since  continued  in  |.o->">sion.  That  at  the  time 
£di^!t'*«»*».ii-  of  the  purchase  of  the  Ian.!,  HWe  was  indebted  to  tin- 
•oLbT«Ir'»"  '"^complainant  on  bond,  with  Tliomun  Mumlefl  iii-,  >un-fy,  ii, 
•wkinr"IhV"c«n-  the  quantity  of  15,G().>lbs.  of  net  tobacco,  to  be  p;ii«l  at 

tr»ri»id  wirmnit 

•fiiw  he  nnce  of  G5  shillings  per  hundred,    the  whole    amount- 

MOt        11,-fr.t        (lie 

r«i«iui>i-  i'.t.-r..t  inj  to  £482  current  mnnev,  and  it  \\  ;i^   then   agreed    tliat 

tfctHSCfVMM    '.Mor 

'i  III'  tne  *M)ni'  •ho*M  be  i  ii  port    paymAt   of  the  land 

rf  """  at  ^1C  sa"'  timonnU  and  the  same  was  acconliiijilv  -ivt-ii  up 
'.'"C'l-mn'  to  H'f'lf.    That  the  complainant  continued  in  possession  of 


. 

"".!  ill*-  land,  and  used  and  cultivated  it,  and  ha\ing  j)aid  up  the 
££'t  f"n^'.hTfc  wTiole  purchase  money,  on  »hp  1-:th  uf  Novcn.t.er  1798,  ob- 

•nvevance  for  (he  -:m\o.     That  after  he  had  pur- 
ta_o, 

10  rxtwfy  hit  debt,  by  por.uinr  tin*  pMMr  m-ant. 


VOL.    II. 


OF  MARYLAND.  65 

chased  the  land  from  Wade,  and  had  paid  the  amount  of  1807. 
the  bond  in  manner  aforesaid,  and  had  been  in  possession, 
and  had  used  the  land  from  the  month  of  December  1797 
to  May  1798,  a  certain  Bryan  Hampson  obtained  three 
judgments  against  ffade&t  May  term  1798,  in  the  gene- 
ral court,  on  which  judgments  several  writs  of  fieri  facias 
have  issued  returnable  to  the  next  general  court  at  May 
term  1800,  and  have  been  laid  on  the  land  of  the  complain- 
ant so  as  aforesaid  bought  and  paid  for,  and  there  will  be  an 
immediate  sale  thereof,  unless  prevented  by  this  court. 
That  at  the  time  tfce  complainant  purchased  and  paid  for 
the  land  as  aforesaid,  he  never  heard  of  the  judgments 
against  Wade,  and  was  wholly  ignorant  of  the  same,  until 
the  writs  of  fieri  facias  were  about  to  be  laid  on  the  land. 
That  he  is  advised  that,  having  bought  the  land,  and  hav- 
ing been  in  possession  thereof  as  aforesaid,  and  having 
paid  to  the  amount  aforesaid,  before  any  judgment  was  ob- 
tained against  Wade,  he  is  entitled  to  the  aid  of  this  court 
to  secure  him  in  his  title  to  the  land.  Prayer  for  an  in- 
junction to  enjoin  proceedings  on  the  judgments  and  exe- 
cutions, and  for  other  relief,  &c.  An  injunction  accord- 
ingly issued.  , 

On  coming  in  of  the  t'efendant's  answer,  and  testimony 
taken  under  a  commission,  the  case  was  submitted. 

HANSON,  Chancellor,  (October  term  1803.)  Whether 
or  not  the  defendant  would  have  had  any  ground  of  relief 
in  case  he  had  filed  a  bill  against  Edelen  and  Wade,  the 
Chancellor  neither  will,  nor  ought  to,  nor  can  positively 
determine.  Perhaps  the  whole  of  the  circumstances  of  the 
case  may  not  be  before  the  court.  However,  as  the  Chan- 
cellor cannot  doubt  that  the  complainant,  at  the  time  when 
the  judgments  in  the  bill  mentioned  against  Wade,  had  a 
clear  equitable  interest  in  the  land  mentioned,  which  lias 
since  been  conveyed  to  him,  he  conceives  that  it  is  the  du- 
ty of  this  court  to  protect  the  said  interest — Decreed,  that 
the  injunction,  in  this  case  issued,  be  perpetual,  and  that 
each  party  pay  his  own  costs.  From  which  decree  the  de- 
fendant appealed  to  this  court. 

The  cause  was  argued  in  this  court  before  CHASE,C!I.  J. 
N,  and  NICHOLSOX,  J 


06  CASKS  IN  TIIK  coniT  OK 

18(  '/'•  Buchanan,  IW  the  appellant.   The  mieMkm  i-,  \\lirilu-; 

or  uota  nun  I'.tuhaMii.;  Kind  under  a  parol  agreement  >hall 
be  protected  tgpinst  a  judgment  creditor,  under  a  judgment 
rendered  against,  the  vendor  ^iil)..«i«|(n-ii(  in  tlu-  >ale  and  prior 
to  any  conveyance  being  made  for  tlu-  land?  He  referred 
to  Sorrel  vs.  Carpenter,  2  P.  II  ins.  48-2.  '2  Fonbl.  157. 
Jf  .  71ie  Earl  of  Scarborough,  3  .tf/A*.  392. 

Chiirchil  r«.  Grove,  1  CAa/i.  Co,  35.  Booty  vs.  Skipwith, 
Ibid  201.     Peaek   vs.  Hirti-inlsca,    10  J/oc/.  468.     jpt/ic/t 
r«»  tl'inchtlsca,  1  /J.  Jfww.  i77.     2  Pow.on  Con/.58,o-4 
I,  Orrf,  1  ,/?/*.  571.     Marlon  vs.  Smith,  "2  /'. 
Jf  «M.  199.      Twin-ilk  t*.  AuiWi,  3  /J.  WMJ*.  307.    // 
r*.  //'/      .  1  .M.  384. 


Shaaff  argued  for  the  appellee. 

(  H  ASF.,  Oh.  J.  delivered  the  opinion  of  the   court.     In 

this  case  it  appears  iliat  a  considerable  part  of  the  purchase 

money  was  j>ai«l,  and  possession  given  of  the   land,  prior 

to  the  obter.tioii   of  the  judgment:*  by    llainpson   against 

n-,,,1,. 

A  contract  for  land,  bona  fide  made  for  a  valuable  ron- 
mderation,  vests  the  ecjuitable  interest  in  the  vendee  from 
the  time  of  the  execution  of  the  contract,  althoujrh  the  mo- 
ney is  not  paid  at  that  time.  When  the  money  is  paid  ac- 
cording to  the  terms  of  the  contract,  the  vendee  is  entitled 
to  a  coiwyaiuT,  and  to  a  decree  in  chancery  for  a  specific 

Mtion  of  the  contract,  if  such  conveyance  is  refu-ed 
A  judgment  obtained  by  a  third  person  against  the  ven- 
dor, mcsne  the  making    the  contract    and  the    payment  of 
OK-  money,  cannot  defeat  or  impair   the  equitable    iii 
Dm*,  acquired,  nor  is  it  a  lieu  on  the  land  to  affect  the  right 

>j»r  triitil. 

\  juduiiu  in  i',  a  lien  on  the  land  of  the  debtor,  and  at- 

tathe-  on  it  a^  a  fund  lor  its  payment;  but  the  legal  v-tate 

in  the  land  is  not  vested  in  the  judgment  m-ditoi,  although 

he  can  convert  it  into  money,  to  satisfy  his  debt,    by  pur- 

^  the  proper  in 

DECREE  AFFIRMED. 


OF  MARYLAND,  67 

COVER  vs.  CHRISTIE  anil  JAY.  1S07. 

JUNE. 

APPEAL  from  the  Court  of  Chancery.     The  bill  of  the 
complainants,  Christie  and  Jay,   stated,    that  on  the  20th 
of  February  1797,  Smnuel  Willelts,    for  full  value  receiv- 
ed,  executed  a  single  bill  to  Gover,  the  defendant,  promis- 
ing  to  pay  to  him,  or  order,  £233,   on  or  before  the  1st 
April  1798.     That  in   consideration   of  a  debt  due   from  jg* 
Goter  to  them,  he  on  the  llth  of  May  1797,  assigned  the  -for  K™ 
said  single  bill  to  the  complainants.  That  suit  was  brttogfctbyVB««umt.*,»» 

~     ._,  compel    payment 

on  the  bill  against  nil/etts,  in  the  name  or  Gover,    lor  tne  of  the  bond  ««a?- 

,  .  i       •        i  'igueil —  Decreed, 

use  of  the  complainants.      1  hat  a  judgment   was  obtained  that  the  court  of 

.  .  chancery   has    no 

at  May  term  1 800,    and  an  execution   issued    against   (hejwwiMMii;  that 

•  °  rf  the  assignment 

property  of  fVilletts.  which  was  returned  nulla  bona  toOc-  was  an  extinguish- 

*  meat  ef  the  origi- 

tober  term  following.  That  no  payt  of  the  debt  was  ever  niaa'i,tant' was* n"ot 
paid,  except,  £10  paid  on  the  30th  of  September  1797.  ^1- dattoia«ei  or 
That  Wilktts  has  become  insolvent,  and  released  by  the  in-  |netqu£s;iKnmden[ 
solvent  law.  That  the  complainants  have  frequently  called  %$££?  oT'tiTe 
on  Gover,  the  assignor,  and  requested  payment,  which  he  has  confpia'inanf'  had 
refused.  That  the  assignment  of  the  single  bill  was  not  on  Uthe  ^ri^ata 

,  _     ,  r  ui  11     contract, there  bc- 

made  in  pursuance  ot  the  act  ot  assembly,  so  as  to  enable  inK  «o  c\rcnm- 

^j  .    .  1,1  ',     /-,  stances     disclosed 

the  complainants  to  proceed  at  law  against  Gover,  the  as-imuebiiitomak-e 

,  it    necessary     fin- 

signer.     Prayer,    for  a  decree  to  compel  Gover  to  pay  the  him  to  r«ort  to» 

court  of  equity. 

amount  of  the  single  bill,  (deducting  the  safl  payment,) 
with  interest,  &c.  and  for  other  relief,  &c.  The  answer 
of  Gover  stated,  that  he  assigned  the  single  bill  ofTPJilletts, 
and  two  other  bonds  to  him  from  other  persons,  to  the 
complainants,  in  full  satisfaction  of  the  debt  which  he 
owed  to  them,  and  that  they  agreed  to  take  said  assignments 
in  full  satisfaction,  without  having  any  further  or  after  re- 
cdtirse  to  him  for  the  debt  due  from  htm  to  them,  or  for  or  on 
account  of  the  assigned  bill  and  bonds,  and  upon  that  con- 
dition the  assignments  were  made,  aiid  receipt  in  full  was 
given  for  the  debt  due  by  him  to  them.  That  when  the 
assignments  were  made,  the  several  obligors  were  in  sol- 
vent circumstances,  and  good  credit;  and  that  the  amounts 
due  on  the  two  bonds  have  been  received  by  the  complai- 
nants, and  they  might  have  received  the  amount  due  on 
the  single  bill  from  fVillctls,  if  due  and  reasonable  dili- 
gence had  been  used.  The  complainants  entered  a  gene- 
ral replication  to  the  answer  of  the  defendant,  and  a  com- 
mission issued  to  take  testimony.  By  the  testimony  it 
was  proved,  that  Willelts  was  not  solvent  and  in  circum- 


08  CASKS  IX  TITK  (  OMIT  OF  APPEALS- 

180r.        Stances  to  pay    \\\-  debt-;  io    an%    amount   in   either   of  the 
*—  >  —  '  in-   1*00.     'I'],--  ;ns  Mib 

%)hted,  the  follow.;  was  made  by, 

c, 

II  \XSON,  Chancellor,  (December  term  180.1.)  The  cause 
being  ready  for  decision,  the  bill,  answer  and  exhibits, 
evidence,  and  all  other  proceeding,  were  by  the  Chancel- 
lor carefully  read  ami  •  •!,  and  it  aj'|n-aiin_ 

and  equitable  that  the  complainants  should  not  be  exrlud 
ed  from  recovering  the  balance  of  the  debt  due   from  the 
defendant  to  them,  on   account  of  having  received   the  as- 
signment of  a  bond    from  on  •  H7/A//.S  to  ihe  com- 

plainants, inasmuch  as  the  money  ne\er  \\a-  rei  ened,  and 
especially,  as  appears  from  the  evidence  in  the  cau«e,  that 
he  was  insolvent  at  the  time  the  defendai  d  the 

same  to  the  complainant  —  Decreed,  that  the  defendant  pay 
to  the  complainants  the  sum  of  £(216  7  9,  current  money. 
stated  by  the  auditor  of  the  court,  under  the  Chancellor*-; 
order,  to  be  due,  with  interest  thereon  until  paid,  together 
with  costs  of  suit.  From  which  decree  the  defendant  ap- 
pealed to  this  court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  TILOH 
NICHOLSON,  and  GANTT,  J. 

Shaaff  and  Harper,  for  the  appellant,  contended,  that  the 
complainant  !.:;:!  adeq.ia'e  n  iav.  and  could  not 

apjily  to  a   court  of  equity  for  n  -lief.     They  referred    tn 
'•n.  1  I'tirr.  Sf  Johns.  370.  Forbes  vs.  Per- 
rtc,  I  bib.  109.   Winchexltr,  ft  ul.  r.v.  Brooke,  an 


<.vo/i,  (Attorney  Geneiv.l.,   t-  r  the  appellee-, 
,.   10,   1  1.     ')  .  c/i.  23,*.  9,  10.  i 

vs.  / 

1      \SK,  Ch.  J.  delivered  the  opinion  of  the  court.      The 

of  opinion,    that   the  coiut   of  eliaim-iy   I. 
liction  in  this  case. 

If  the  a>siuniuent  was  an  extinguuhmenl    of  tl;e  origi- 
nal debt,  the  -  nits  are  not  entitled  to  icliel,  eithn 

at  law  or  in  equity. 

If  the  assignment  was  not   an  inn;  nt  of    the 

<ual  debt,  and  the  court  arc  of  that  opinion  on  cun-ide- 

ration  of  the  bill,  answer  and  proof,  tlie  complainant-  had 


OF  MARYLAND.  03 

their  remedy  at  law  on  the  original  contract,  there  being 
no  circumstances  disclosed  in  the  bill  to  make  it  necessary 
for  them  to  resort  to  a  court  of  equity. 

DECTIEE  REVERSED. 


LAIDLER  7'-?.  YOLNG'S  Lessee.  JVXE. 

APPEAL  from  the  General  Court.     The  appellee  brought    A,  bv  his  viii, 
un  action  of  ejectment  in  that  court  to  recover  a  tract  of  -i  Ka4  a^d'^-ii 

•  to  my    son     II,    a 

land   called   Let's  Purchase*    otherwise  called  Laidlers  tract  of  Hnd,  s-c. 

to    him    and    J-jj 

jFcrni,  lyinc  in  Charles  county.      I  he  defendant,  (now  ap-ht-<'8'f°««-'-.  »n<i 

'I'gl   V      &  •/  ^  l      HI    c.ise     he    dies 

Dellatit.)    took  general  defence.     At  the  trial  at  Way  term  without  hem,  to 

*  *  '  niy  >on  .',  and  tin* 

1804,  the  plaintiff  offered  in  evidence  a  grant  for  Zee's  ^."j  hisb^ 
Purchase,  dated  the  2d  of  May  1664,  to  John  Lee;  also  the  ^d™1^^ 
>vill  of  Richard  Lee,  the  heir  of  John,  dated  the  3d  of  ^'  R'  lhe  d^ 
March  1714,  devising  the  land  to  his  son  Philip  Lee;  also  NoYem^rhl'nm",f 
the  will  of  Philip  Lee,  dated  the  20th  of  March  1745,  dcvis-  ^\,V™-™ 
ing  the  land  to  George  Lee;  also  a  deed  from  George  Let  gcthrr,  or  conic? 
to  John  Laidler,  dated  the  10th  of  Oct'rl760,  and  the  v,;H  qSaiiL-d""'^^ 

,-     .  ,,  .     ,  i-   -r>    i  •    •  A  coiiui.u,.  dc  edof 

of  JohnLaidlcr  dated  the  Istot  February  17/  1,  devisiog  fts  barpa.n  ami  sale 
follows,  viz.  '*!  give  and  devise  to  my  son  Robert  L,\  /and 

all  that  tract  of  land  called  Lee's  Purchase,  to  him  asai  his"1""*  sn-nu-L-. 

Ii  a   l.,.,iud   in- 

heirs  forever,  together  with  the  lands  thereto  adjoining:  trl  ^  >•  c°>  veyed 

°  .  *'    bj    Wit.!.:.l;l    :l:   lull, 

and  in  case  he  dies  without  heirs,  to  my  son  John  Laidler,  li''""  "!l;  '^i"1'-- 

•'  '  t:on    o;    (lit     ;M:- 

and  the  heirs  of  his  body  lawfully  begotten."  He  also  ^e'!"n.-,1'nl',?til}f 
offered  in  evidence  and  proved,  that  after  the  death  of  Jofn>  ^''^i'^'' 
Laidler,  the  testator,  Robert,  his  son  and  devisee, 


and  was  seized  of  the  lands  devised  to  him  by  the  will;  aihi  ;.  wftj 

that  Robert,  in  his  life-  time,  executed  the  following  lease  passMic'fsTatefor 
to  the  lessor  of  the  plaintiff,  viz.   viKnow  all  men  by  these  Ivp,*^"!"'* 
presents,  that  I,  Robert  Laidler,  of  Charles  county,  in  theby^tenliiiMiTtail 
state  of  Maryland,  for  and  in  consideration  of  the  annual  taiV'foi  a  i: 

.,    „  .  time.     If  lhe  niii- 

sum  or  live  pounds  currency,   paying  my-iust  debts,   and  "ty  is  tui>,,  xhe 

.•rj.°'/J          .  old  estate  is   rr*i- 

maintaining  my  sister  Elizabeth  Laidler,  have  farmed   and  v«'« 

J  •  An    .-'tale    tail 

to  rent  let  unto  Joseph  Ycunsr.  the  plantation  whereon   Iwnuwtbe  d^i  .1 

1  isuiici-   iii:-    act  ot 

now  live,  known  by  the  name  of  Laidlers  Ferry,  for   the  iT'-2'  c/'2j 

7  *  The     intention 

term  of  seven  years  from  the  date  hereof.     As  witness  my  a"d,  »H'a»»'S  of 

•  V  the  legislature  are 

tu     be     coiiecied 
from  the  law  itself,  and  they  are  not  to  be  restrained  by  any  Iliing  in  the  preambli  . 


CASES  IN  THE  COURT  OK  APPEALS 

1807.        hand  and  seal  this  eighth  day  of  June   .seventeen   In; 
and  ninety  -nine. 

Hobtrt  Laitilcr  (*e*l.) 
Witness, 
•Idmn  Jt,.- 
Slr/j/icn  Moort. 
John  .\li/nii: 

That  Robert  /xnYMpr  died  after  the  execution  of  the  l< 
intestate,  and  without  issue,  lea\iii£  the  defendant  hi>  hri- 
at  law.     The  defendant  then  prayed    the    opinion    of  thc- 
court,  and  their  direction  to  the  jurv,  that  under  the  lease 
so  executed,  the  plaintift*  was  not  entitled  to  recoM-r. 

Key,  Mason,  and  J.  B.  Ducket  I,  for  the  defendant,  con- 
fended,  that  the  lease  executed  for  -"M-n  year-,  by  Robert 
TMidlcr  the  tenant  in  tail,  did  not  operate  under  the  act  of 
November  1782,  ch  23,  to  bar  the  estate  tail  created  by  the 
vill  of  John  Laitlfcr,  and  that  upon  the  death  of  Robert 

">  r,  ihe  land  descended  to  the  defendant     They 
and  relied  on  the  statutes,  rf«  (font*,   3'2  llm.  \  III.  Jt  CS. 
13  Edw.  I,  ch.  1.  4  Bac.  Al).  tit.  LtaSes,  (D.) 


(Attorney-General,)  Johnscn,  ^  '/'.  tturhanany 
for  the  plaintiff.  rdVi  icil  to  the  same  statui  1  Blk. 

Com.  119.  The  acts  of  June  1773,  ch  1:  Nov.  1782,  ch  23; 
and  1780,  ch  4.~>.    7'  •/.-••'  tt  ".r  rv.   /'r^//,  1  Ilurr.  c\- 
facet's  Lessee  vs.  Funraoif  ft  al.  "2  Uurr.  \ 

CHNSK,  Ch.  J.  (a).  The  Court  are  of  opinion,  that  u 
the  act  of  assembly  of  November  178-2,  ch.  C3,  a  tenant 
in  tail  may  defeat  the  estate  tail  altogether,  or  convey  on- 
ly a  limited  or  qualified  estate;  the  remainder,  \vhau-vci  it 
inav  he,  will,   in  this  last  case,  descend.     But  if  he  in 
tends  to  change  the  estate  tail  to  a  fee  simple,  then  a  con- 
:,ce  and  irron\eyance  to  himself  are  necessary.      15u! 
if  he  disposes  of  the  estate,  a  common  deed  of  bargain  and 
Bale  will  operate  to  omey  the  estate,  and  vest  a  lei- 
j.lr  iu  the  gran 

If  a  limited  interest  is  conveyed)  upon  the  •  \|.  M  um  ot' 
the  particular  int«-ie-t,  the  tenant  iu  tail  again  takes  the 
estate  tail  a»  originally  hrld. 

(a)  Pone  »nd  Sprigg,  4.  concurred. 


case  was  argued  before  TILGHMAX,   NICHOLSON, 
and  GANTT,  J.  by 

Key,  for  the  appellant,  and  by 

Johnson,  (Attorney  General,)  and  T.  Buchanan,  for  the 


OF  MARYLAND.  71 

The  Court  have  no  doubt  but  that  a  lease  will  have  the        1807. 
<efiect  to  pass  the  estate,  for  the  term  of  years  therein  ex- 
pressed; for  if  a  tenant  in  fee  simple  can  lease,  a  tenant  in 
tail  may  also. 

It  was  contended,  in  the  case  of  Paccfs  Lessee  vs.  For- 
woodet  al.  that  an  estate  tail  might,  under  the  act  of  1782, 
be  devised  by  last  will  and  testament.  But  the  court  said 
it  could  not;  for  they  considered  the  tenant  in  tail,  and  the 
heir,  in  the  situation  of  joint  tenants,  and  that  the  estate, 
upon  the  death  of  the  tenant  in  tail,  survived  to  the  heir, 
and  as  the  will  would  not  take  effect  until  after  the  death 
of  the  tenant  in  tail,  the  right  of  the  heir,  by  such  death, 
had  already  vested. 

It  has  been  said,  that  a  mortgage  executed  by  the  te- 
nant in  tail  conveyed  the  interest.  It  is  not  so.  When  the 
money  is  paid,  the  old  estate  is  again  revived,  and  the 
mortgage  only  defeats  the  estate  tail  for  a  limited  time. 

The  intention  and  meaning  of  the  legislature  are  to  be 
collected  from  the  law  itself,  and  they  are  not  to  be  res- 
trained by  any  tiling  in  the  preamble. 

Upon  the  whole,  the  court  are  of  opinion,  that  the  lease 
in  this  case  is  good  and  valid  in  law  to  pass  and  transfer 
the  interest  in  the  land  to  the  lessee  for  the  term  of  years 
therein  mentioned,  and  when  the  term  of  years  expires, 
the  remainder  -man  will  take  the  estate  under  the  will! 

The  defendant  excepted.  Verdict  and  judgment  for  the 
plaintiff,  and  the  defendant  appealed  to  this  court. 


THE  COURT  ©?  APPEALS  affirmed  the  judgment  of  the 
General  Court 


\  THE  COURT  OF   U 

lanr.  M-  -'MINI'S    I.r- 

Jt  ••• 

VHT.U.  from  the  Genera)  Court.      'I'liis  was  an  action  ol 


WKIdcrry         fjcctUHMlt  t>ni''  ;ht   ti)  IVCu'  I'.Nof   land,  \  I 

smiih         Harbour,  ami    '/  .  1  vinu  in  Baltimore  coun- 

Ifth<-d«*n*.nt  ,     ,     I  • 

«!uni>ir  the  |..  n  i  v.      1  he  del  t'luluMt,    (now  appellant.)  pleaded  Hie  general 

«*«icjr  uf  •    «•/«•    •  *  * 

-sue.      The  plaintiff  at  the  trial,  at   May   term    18O4,    <>f- 

:-ed  in  evidence,  t:  '  -i^ti,;    in   his   life-time, 

.1  of  four  parts  or  parcels  of  the  two   tracts  of 

£™  i.uid  for  which  the  ejectment  was  brought,  and  being  justly 

i!1,!,!^'.  £  indebted  to  James  Franklin,  in  order  to  secure  to  him  pay- 
111'1     ""incut  of  the  money  due,  did.  mi  the  9th  of  M 

a^c  to  him  of  the  said   ,  I   land,  U> 

H   riihi-r  K  ner»l.  .  .   .  -    .,  .  .,         „,,,          ,. 

•  I  ii|)on  pavi-itMit  ol  the   money  due,  on  the  (  t.t   ol 
'••lay  1789.      He  al>o  ^ave  in  (\idt-jn.c,  that  no  part  of  the 

vh.thernr  roimoiu.y  |,as  i)0cil  paid;  and  that  the  lessor  of  die  plaintill'  i< 

. 
a)  !       ;.ii'l  administratrix  of  Franklin,  \\lio  died    be- 

•  .re  (lie  in.-Mulion  of  thi^.  Milt.      Tin.-    drU-iuIant   then   of- 

•,-«-d  in  evidence,  tliat  -Sfi/df  was  M-i'/.ed  ami  possessed  of 

;".K»ib  uud'.bl.a  tlie  saitl  luur  parcels  of  land   before   and  on   the  s»4ili   of 

SJ^kiJjSJt'Mv  1^85.     lie  then  offered   in  evidence  a  record  of  a 

V'.!t  7v\'.  judgment  obtained  by  Tlwinas   Usher  again»t    SUgar,  in 

!  "«li  the  general  court  in  May  1T85,  which  judgment  wa>  >i-n- 

KCC  M<  tke  «k«-  ed  on  the  i24th  of  that  month.     And  evidence  that   I 

!'n<-"^  afterwards  departed  this  life  on  the  1st  of  January  1786, 
th<.'  bad*.  haying  bv  his  will  appointed  T.  Usher*  J.   DonalJ.-'Hi.  and 

Itni  h«-li*J  "i'.»i><-    _      -    ,  .  _. 

.miiaiwfl-tii'i'i..-  \  Jo/Histon.  his  executors.     He  also  offered  in  evidence 

<.|V   in     part,'    to 

»ith  /wr«/  certain    records   and  pr  •<  general    court, 

rMb/V^fl^'ud  s'lowuig  lnat  tne  said  executors  at;  in  tiie  5th  of 

\pril  1786,  sued  out  a  writ  of  scire  facias  on  the   said 

,  'id^inent,   the  same  beiiu  tiien   due  and   unsatisfied;  and 

'iat   a  fiat    w.is    tliereon  ^nti-red   ;:t  October  term    1787. 

Tliat  a  writ  of  Jieri  facia.i   issued  on    the   la  --t   mcniiuiird 

judgment,  directed  t->  ',i-rilf  nf  Ji«liimore  coun- 

•  n  the    ITih  of  July  1788,   returnable  to  tin-  O 

:,  when  it  i  by  the   said    sheriff, 

thereon  endorsed,  "made  as  per  schedule,  and  muaiiis  i* 
the  sheriff's  hands  for  want  of  buyr.-."  \\liidi  ..ml 
dule  stated,  that  "four  acres  of  land  ric  n  /ia/thnorc- 
town,  and  adjoining  the  property  or  lands  of  Gen,  -.'<•  Ln.,\ 
with  all  the  improv  ereon,"'  were  valued  by  four 

'.  and  '-about  '27  acres  of 
laud,   more   or   \v**t   part  of  Cole's  Harbour  or   7 


OF  MARYLAND.  73 

Range,  and  part  of  Mounteney's  Neck,  lying  to  the  north  1807. 
side  of  Pitt-street,  near  Baltimore-town,"  were  valued  at 
£12  per  acre;  and  "about  2j  acres  of  land  in  the  S.  East 
addition  of  Baltimore-town,  lying  on  Harford.  and  Eden 
streets,"  were  valued  at  £12  per  acre;  and  "Part  of  TodcPs 
Range,  containing  1 1  acres,  more  or  less,  leased  to  Peter 
Sheppcrd  for  £90  pr.  annum,"  was  valued  at  £1500.  That 
a  writ  of  venditioni  exponas  issued  to  the  said  sheriff  on 
the  6th  of  December  1788,  commanding  him  to  expose  to 
sale  the  several  pieces  or  parcels  of  land,  and  the  money 
therefrom  arising,  have  before  the  court  at  the  May  term 
then  following;  which  last  mentioned  writ  the  said  sheriff 
returned,  thereon  endorsed,  "made  and  satisfied  plaintiff 
in  part,  £485."  He  then  offered  in  evidence,  that  T. 
Usher  purchased  the  lands  exposed  to  sale  upon  the  said 
writ  of  venditioni  exponas,  from  the  said  sheriff,  under  the 
said  execution;  and  that  the  said  sheriff  executed  to  him  a 
deed  therefor,  which  deed  the  defendant  also  offered  in 
evidence,  dated  the  31st  of  December  1790.  He  also  of- 
fered in  evidence,  that  T.  Usher  did  duly  pay  to  the  said 
sheriff  the  purchase  money  for  the  land  so  to  him  sold; 
that  he  entered  upon  the  said  land,  and  was  thereof  seized; 
and  afterwards,  on  the  llth  of  May  1792,  for  a  valuable 
consideration  to  him  paid  by  the  defendant,  did  duly  exe- 
cute and  deliver  to  him  a  deed  of  bargain  and  sale  for  the 
said  parts  of  the  two  tracts  of  land  before  described.  Also, 
that  under  that  deed  the  defendant  entered,  &c.  and  that 
Franklin,  or  any  person  claiming  under  him,  never  was  in 
the  actual  possession  of  the  said  lands,  but  that  the  same 
remained  in  the  actual  possession  of  Stigar,  or  those  under 
whom  the  defendant  claims.  The  plaintiff  then  prayed  the 
opinion  of  the  court,  and  their  direction  to  the  jury,  that 
on  the  foregoing  statement  of  facts,  if  they  believe  it  to  be 
true,  the  plaintiff  is  entitled  to  recover  all  the  lands  for 
which  this  suit  is  brought. 

Martin,  (Attorney -General,)  and  Harper,  for  the  plain- 
tiff, in  their  arguments  cited  Arnott  and  Copper  vs.  Nicholls, 
1  Harr.  $  Johns.  471.  and  Co.  Lilt.  1. 

Key,  Purviance  and  S.  Chase,  jr.  for  the  defendant,  in 
iheir  arguments  cited  1  Blk.  Com.  91,  328.  Cunningham's 

vol..  n.  10 


74  CASES  IN  TIIK  «»rkT  OF  APPEALS 

1807.       L.  D.  tit.  Terr  Jacob's  L.  D.  tit.  Terrettnunl. 

^63,  507.    >  Hur.  J/-.  tit.  Execution,  363.  Com. 
xii.  /  .  (1)  1.)  2Blk.  Corn.  91. 

CHAM.  I'h.  J.fr/^.  In  the  case  of  Arnott  and  Copper  vs 
Xich'tlts,  the  court  considered  they  iiiiirlit  on  motion  de- 
cide whether  or  not  Goldsborough  was  a  bonafule  pur- 
chaser, and  it  turned  out  that  he  was  a  fair  purchaser.  The 
fieri  f nuns  in  that  case  had  been  taken  out  after  the  aliena- 
tion of  the  iaud,  and  the  court  thought  the  alienee  should 
have  notice;  and  that  a  scire  facias  should  have  issued  to 
warn  him  as  terretenant;  that  the  whole  real  estate  of  the 
defendant  was  bound  by  the  judgment,  and  if  there  were 
oilier  alienees,  or  other  real  estate,  the  whole  should  con- 
tribute. That  the  alienee,  having  notice,  might  come  in 
and  pay  the  judgment  so  as  to  exonerate  the  land;  and  if 
other  property  than  that  aliened,  the  fieri  faciat 
bhould  be  levied  of  that,  before  recourse  should  be  had  to 
the  land  aliened. 

The  court  consider  the  case  of  .Qrnott  4"  Copper  vs , 
Xic/iolLi,  similar  to  the  case  at  bar  in  all  respects  except 
as  to  the  mortgage. 

The  mortgagee  has  a  legal  title  in  the  land  mortgaged, 
and  upon  failure  to  comply  with  the  proviso,  by  paying  the 
money,  the  legal  title  is  completely  vested  in  the  mortga- 
gee, to  be  defeated  only  upon  payment  of  the  mortgage 
money;  or  in  other  words,  the  mortgagee  has  a  legal  title 
in  the  land,  dcfcasable  at  law,  by  redemption  at  the  day, 
indefeasable  at  law  afterwards. 

The  mortgagee  can  bring  his  ejectment,  but  the  mortga- 
gor may  come  in  and  pay  the  money,  and  exonerate  the 
land. 

At  fhe  time  the  judgment  was  rendered  on  the  scire  fa- 
was  terretenant  of  the  land,  and  the 
ncire  fucitut  ought  to  have  issued  against  him  to  giv  e  .him 
an  n|i|:'i;  iiiniiy  to  plrad  a*  ti-rrctenant. 

A  A  ttd  tonrti-nants  is  either  general  or  spe- 

cial; ih.ir  is,  either  against  the  terretenants generally,  with- 
out naming  them,  or  specially  against  them  by  name.  In 
the  I'..;  :-,••!  h  ir.ay  be  shown  there  are  others,  and  in  the 

(a )  Done  a;iu  Xfirtpg,  J.  concurred. 


OF  MARYLAND.  75 

latter  it  is  a  good  plea  in  abatement,  tliat  there  arc  others        1 80^. 
not  named. 

In  this  case,  instead  of  issuing  the  fieri  facias  the  par- 
ty should  have  taken  out  a  scire  facias  against  the  mortga- 
gee, the  terretenant. 

The  court  therefore  give  the  direction  to  the  jury  as 
prayed  by  the  plaintiff". 

The  defendant  excepted,  and  the  verdict  and  judgment 
being  for  the  plaintiff,  the  defendant  appealed  to  this 
court. 

The  cause  was  argued  before  TILGHMAN,  NICHOLSON', 
and  GANTT,  J. 

Key  and  Shaaff,  for  the  appellant,  stated,  that  the  ques- 
tion for  the  decision  of  the  court  was,  whether  or  not  a 
writ  of  scire  facias  ought  to  have  issued  against  the  terre  • 
tenants  claiming  under  the  mortgage,  where  there  was  an 
alienation  of  the  land  pending  the  scire  facias  on  the  judg- 
ment? They  contended,  that  a  writ  of  scire  facias  was  not 
necessary,  and  referred  to  2  Bac.  Ab.  tit.  Execution,  (I.) 
731.  4  Com.  Dig.  tit.  Execution,  (D  1.)  133,  10  Vin.J^b. 
tit.  Execution,  563.  Co.  Lilt.  290.b, 

Harper,  for  the  appellee,  cited  6  Bac.  Ab.  tit.  Scire  Fa- 
cias, (C  5.)  114.  Tulhfs  case,  2  Sulk.  598.  5  Com.  Dig. 
tit.  Pleader,  (3  L.  14),  783.  Mams  and  Terretcnants  of 
Savage,  2  Salk.  601.  The  Earl  of  Pembroke's  case,  Carth. 
111.  Arnott.  4-  Copper  vs.  Nicholls,  1  Harr.  Sf  Johns.  471. 
He  also  objected  that  the  sheriff's  returns  on  the  fieri  fa- 
cias and  venditioni  exponas,  and  the  sheriff's  deed,  with 
the  evidence  offered,  were  not  sufficient  to  vest  the  legal 
title  to  the  lands  in  the  purchaser;  but  this  objection  was 
afterwards  withdrawn,  because  it  had  not  been  made  in 
the  court  below. 

THE  COURT  OF  APPEALS  reversed  the  judgment  qf  the 
General  Court. 


7(j  (   \M-:*  IN  THK  COURT  OF  API'K  \  I.- 

AN  .  DA  i!.. 

Arr-FAi.  from  a  decree  of  the  Court  ofChancery  dismi:-- 
p'mg  the  bill  of  cotnj)laiiit.     By  the  hill,  an-wer,  and   b 
I|*11          timonv-  taken  in  (he  cause.  it  appears  that  a  certain  i 

A  parol  contract 


itiimi  »olh"  ^"'^  having  a  daughter  married  to  ffingattf  the  complain- 
u,T;  inhuw'  wo«i"i  ant»  entered  into  a  verbal  agreement  with  him  to  -ell  to  him 
to"hw  "inlnJ*  'wn  two  parcels  of  land,  on  which  fl'ln^ftfc  then  re-i-.lei!.  for 
ofthr«ndi™u'"^150,  being  one  half  the  value  of  the  land;  the  other  half  he 
S7i«r-l'oi-l!j?,-  intended  to  give  to  //V/i-«/«'".v  wife;  and  that  Dull  olten  ^- 
«fl  th'i'pnM-u'i^it  clared  that  .the  land  was  to  l>e  deeded   to  Hhi^uft'i  son. 
w  in  Uw.  /nd  '•  That  //  innate  pij'ul    L-Ki  in   part  of  the   purchase  mom  v, 
oney  ^'Id.  and  continued  in  possession,  and  paid  the  taxes  on  the  land, 
which  were  charged  to  him  by   (he  direction  of  />«»/,   and 
with  the  approbation  of  JHngate.     That  /Jail  made  an  en- 
try in  ]}\>  book  of  accounts,  crediting  //  in^ufr  on  the  '25th 
of  August  1798,  "By  cash  received  for  u  contract   for  the 
plantation  where  he.  now    li\  e>,"  \<  •.  £40.     That    fJnil  af- 
terwards had  a  son  born,  named  Joneph,  (the  appellee,)  and 
in  order  to  make  provision  for  his  son,  declared  his    inten- 
tion of  taking  the  land  from  tl'in^dtr,  and  ^ivin^   it  to  his 
son,  and  in  lieu  thereof  to  give  U'lu^ntc  peoonal  prni 
ty;  which  intention  was  made  known  to  Jf  innate,  who  was 
not  altogether  M»ti»fted  with  the  arrangement.     That  J)ail 
ofiered  to  return  tlie  1-JO  to  II  insult;  which  the  latter  did 
not  reiiisc  to  take,  but  said  he  had  no  occasion  fur  it,    and 
Jhtil  haid  he  would  keep  it  for  him  until  he  should  call  for 
it.     J)ail  afterwards,  by  his  will,  de\i-.ed    the  land    to   his 
the  appellee,)  and  bftjut  -athed  suiulry  .«la\e.-  to  //"/'/<- 
gait's  wife. 

11  \\^\,  Chancellor,  (2d  July  1804.)     It    appears,   that 
to  prevent  the  setting  up  of  contracts,  like  the  one   - 
in  the  bill,    was  the   object  of  the  I    frauds  and 

perjurie-:  and  thU  court  ne\er  did,  and  ne\ci-  «>M^hi,  b\  il> 
decision,  to  defeat  the  -alul.ii  v  intent  of  the  act. 

It  ha-,  indeed,  under  -ome  circumstance*,  «-nforce«l  the 
rmanceof  j-arol  contracts,  but  ne\cr  in  a  case  like  the 
present,  where  it  remains  uncertain  whether  or  not  time 
was  any  contract,  and  even  if  there  was  a  contract,  it  does 
not  appear  clearly  what  was  the  engagement  on  the  com- 
plainant. Decreed,  that  the  bill  be  di-mi-M-d,  but  with- 
out costs. 

From  which  decree  the  complainant  appealed   to  this 
court 


OF  MARYLAND. 

The  cause  was  argued  before  CHASE,  Ch.  J.  TILGHMAX,        J  B07. 
NICHOLSON,  and  GANTT,  J. 

/.  Bayly,  for  the  appellant,  to  shew  that  such  a  contract 
oiijrht  to  be  enforced,  cited  1  Eq.  M.  21.  1  Fern.  363.  % 
Jrcrn.  455.  2d pt.  1  Eq.  Ab.  S3,  42,  44.  1  ^A.  13,  15. 
1  re*.  83,  221,  297,441.2  Fes.  299.  3  /?ffc.  4. 

Shaqff\  contra,  contended,  that  chancery  would  not  en- 
force a  contract  which  the  party  who  applied  to  li;i\e  if 
enforced  had  shown  an  unwiUiagnesa  to  comply  uith  on 
his  part.  That  a  contract,  if  in  writing,  would  not  be  en- 
forced if  there  was  proof  that  it  had  been  rescinded  by 
parol.  1  Foribl.  392,  (note  e.) 

THE  COURT  OF  APPEALS  affirmed  the  decree  of  the  Oourt 
of  Chancery. 


CLARKE  vs.  MAGRUDER,  ft  ah  .    *T.. 

APPEAL  from  the  General  Court.  This  was  an  action  of  T;nie«  the  «m- 
ussumpxili  brought  by  the  appellees,  (the  plaintiffs  in  the  Lrar>  pnMmptiva 
court  below,)  for  goods  sold  and  delivered.  &c.  The  writ  cierk,wtois«u-»«i. 

B  and     who      made 

issued  on  the  9th  of  March  1799,  and  at  May  term  1802.  certain  enti its  on 

•  "  the   books   ol    bi« 

the  action  was  entered  for  the  use  of  Samuel  Johnston,  and  employer, <uiivt-r- 

e<l    the    goods,  as 

others.     The  defendant,   at  October  term  1799,  pleaded  chared 

The   defendant 

non  essttmpsit.  and  issue  was  then  joined.     Heafterwartls,  ««y*«t!lflr«"lj'"*t 

•  0  '  tlie    liraiiintl  s  Gr- 

at  October  term  1801,  filed  an  account  in  bar,   and  gave  i"l^  i" u^le «"- 

nntirp  nf  a   <irf  o,'i'  crued  subsequent 

*  VJJ-  totlie  conimcnfe- 

1.  The  plaintiff',  at  the  trial  at  October  term  1804,  pro-  ™-»it>r the  «",„•» 
duced  the  original  partnership  day  books  in  court,  and  a 
witness  to  prove  the  hand  writing  of  the  clerk  who  made 
the  entries  in  the  books,  the  clerk  being  dead.     This  was 
resisted  by  the  defendant's  counsel. 

CHASE,  Ch.  J.  The  court  have  no  doubt  upon  the  sub- 
ject. It  is  to  be  presumed,  the  entries  being  made  in  the 
hand  writing  of  the  clerk,  that  he  delivered  the  goods  as 
charged.  The  defendant  may  prove  the  contrary,  and  if 
he  does  not,  it  is  presumption,  on  the  part  of  the  plaintiffs, 
that  the  clerk  who  made  the  entries  on  the  books  delivered 
the  goods. 

2.  The  plaintiffs  then  read  in  evidence  the  original  writ 
which  issued  in  this  case  on  the  9th  of  March  1799,  (there 
being  no  endorsement  at  that  time  for  the  use  of  Samuel 
Johnston,  and  others,)  and  that  it  was  served  on  the  1 9th 

' 


78  M>  IN  THK  ('01  UT  OF  APPKALS 

1807.  of  A]  ill  1799.  with  a  copy  of  the  declaration  and  account; 
and  nave  in  evidence,  that  at  October  term  1799,  the  plea 
•'f//i//.si/  was  put  in.  and  issue  joined  in  the  cause, 
Tliev  further  nave  in  evidence,  that  the  defendant  v\a-  in- 
debted to  them  on  the  13th  of  August  1798,  for  goods, 
-  nnil  meiThandiy.e-,  to  him  sold  and  delivered  before 
that  time,  in  the  Mini  of  £381  10  3i  current  money.  The 
defendant  then  ottered  evidence  to  pi  me.  that  on  the  24th 
of  August  1798,  he  paid  the  plaintiffs  the  sum  of  .(.9-V  10  t> 
current  money,  part  of  the  debt  due  to  them;  and  that,  by 
his  counsel,  he  gave  notice  of  a  set  off  at  October  term 
1801,  of  the  following  note,  with  the  endorsement  thereon: 

"Haltimore.  < '  "99. 

For  Dollars  1270  92.  Six  months  after  date  we  promise 
to  pay  to  Mi.  /'.  D.  Goverts,  or  order,  one  thousand  tw» 
hundred  seventy  dollars  and  ninety  two  cents,  for  value 
received.  Jt'jn.  B.  Mo  snider  &:  Co.'* 

"Which  note  was  thus  endorsed:  "I  hereby  assign  and 
make  over  all  my  ripht,  title,  claim  and  interest,  ol  the 
within  note,  to  Bailnj  £.  Clark,  for  value  received,  lie 
clearing  me  of  my  indorsement,  and  all  po^ihle  conse- 
quences. Peter  D.  Coverts." 

And  the  defendant  proved  the  signature  to  the  note> 
••////;.  11.  Mugmdcri  ff  Co."  to  be  the  si  <j  nature  and  pro- 
per hand  writing  of  the  plaintiffs, and  the  hand  wilting  and 
me  of  Pftcr  I).  Goverts,  to  whom  the  note  was  made 
payable.  He  also  pave  in  evidence,  that  the  entrv  on  the 
docket  of  the  plaintiff's  cause  of  action  for  the  use  of 

'nisfn/1,  and  other-,  was  made  at  May  term 
and  not  before.     The  plaintiffs  then  produced  and  read  in 
!i\  find    with  the  con-ent  of  the  defendant    and 
his  counsel,  the  certificate  of  Peltr  I).  Goverts,   to  prove 
that  the  defendant,  on  the  16th  of  May  1800,  and  not  be- 
purchafied  the  note  from  him  for  the  >um   <>f   - 

•;ifeml)'-r  1'J,    1  803.    I,  tin-  Mib-i  i  :!MT,  here- 
by certify  to  have  sold  to  Mr.  Haley  E.    Clarke,  on  the 
16th  of  May   1800,   Messrs.  It'm.  Jl.   Magrinler,  4-  Co's 
note  <»f  hand,  drav.n  in  my  favour,  and  amounting  to  dol 
Jars   1270   92  cents,  dated  Orti.hor  the  29th.   179". 
months   after  date,  for  the  sum  of  S-25,  in   consideration 
of  he  the  Raid  Clarke  not  holding  me  responsible  for  my 
indorsement. 

Peter  D. 


OF  MARYLAND.  79 

The  plaintiffs  then  prayed  the  opinion  of  the  court,  and       1807. 


iheir  direction  to  the  jury,  that  the  defendant  could  not 

Clarke 

avail  himself  in  law  of  the  note  so  made  and  endorsed  to 
him  as  a  set  off  in  bar  to  the  residue  of  their  claim. 

Key,  and  T.  Buchanan,  for  the  plaintiffs,  cited  and  re- 
lied upon  Evans  vs  Prosser,  3  T.  R.  186.  The  act  of  as- 
sem.  1785,  ch  46.  1  Esp.  239.  Bull  N.  P.  180.  The  sta- 
tutes, 2  Geo.  II,  ch  22,  *.  13,  and  8  Geo.  II,  ch  24,  s.  4,5. 
3  Went.  Plead.  159  to  172.  Imp.  C.  B.  204,  254,  294. 
Morg.  Vad.  350.  Marsh,  et  al.vs.  Chambers,  2  Sir  a.  1234. 

Mason,  for  the  defendant,  cited  and  relied  on  Gassaway 
•vs  Dorsey,  4  Harr.  $f  M-Htn  405.  fVolgamot  vs  B  runer,  4 
Harr.  fyM'Hen.  89.  Baskerville  vs.  Brown,  2  Burr.  1229. 
I  Esp.  240.  The  act  of  assem.  1785,  ch  46,  s.  7.  Barnes's 
Notes,  450,  Bull.  N.  P.  181.  Collins  vs  Collins,  2  Burr. 

sao. 

CHASE,  Ch.  J.  (a).  The  court  are  of  opinion,  that  the 
•defendant  is  not  entitled  to  the  set-off  claimed,  as  his  right 
to  the  plaintiffs'  note  accrued  subsequent  to  the  com- 
mencement of  this  action.  If  this  set-off  was  allowed, 
great  mischief  would  result  from  it.  It  would  burthen  the 
plaintiff  with  the  costs  of  suit,  although  at  the  time  he  in- 
stituted his  suit  he  had  a  good  cause  of  action,  and  against 
which,  at  the  time,  there  was  no  defence,  and  it  would  en- 
courage and  sanction  a  practice  which  ought  not  to  receive 
any  countenance  or  favour  from  this  court  —  the  practice 
of  buying  up  claims  against  a  plaintiff,  which,  instead  of 
promoting,  would  be  a  perversion  of  justice. 

The  act  of  assembly,  in  the  opinion  of  the  court,  makes 
no  change  in  the  law  as  to  the  time  (he  cause  of  action  ac- 
crues. It  enumerates  the  cases  in  which  the  set-off  may 
be  claimed,  and  allows  the  defendant  to  plead  it,  or  give 
it  in  evidence  on  the  general  issue,  on  filing  his  cause  of 
action,  and  giving  notice  that  he  claims  to  set  it  off  against 
the  plaintiff's  suit. 

Certainly  the  act  of  assembly  ought  to  be  liberally  con- 
strued so  as  to  prevent  circuity  of  action,  and  to  do  jus- 
tice between  the  parties  in  the  adjustment  of  their  mutual 
debts,  subsisting  at  the  time  the  action  was  brought;  but 
there  would  be  no  liberality  or  justice  in  construing  it  so 

fa)  Done  and  Sprigg,  J.  concurred. 


SO  -lilT  OF  AIM'K  VLS 

_  up  claims 

v-- •>•—- '       in  haia-s  tin-  pl.iintiir,  ucid  burthen  him  with  costs,  \\itl 
•MM 

faulr  in  him. 

The  chief  judge  observed,  that  th"  defendant  ran  avail 
-•If  of  nothing   done  during   tin-  pendeiu -y  of  tlrt  ac- 
tion, unless  it  has  I  ho  concurrent  act  of  tlie  plaintiff.     The 
debt    must    bo   a    snli-iitinc   debt  at    the  tinio   tho   suit  is 
brou'iht.     If  the  defendant  pays  the  debt,  or  IMS  a  rd 
he  ni'i>t  j'lcail  it  after  tlio  last  continuance.   If  a 
marries  pending  the  suit,  it  must  be  pleaded  puts  durrein 
continuance. 

In  the  care  of  Jf'ofzatnot  vs.  Brunei-,  there  were  three 
pleas  \i/.  Nothing  in  at  rear,  pavment,  and  set-olK  There 
was  a  demurrer  to  the  la->t  pica,  and  an  exception  to  the 
other  plea'-.  T'li-  exception  was  defective:  and  the  only 
i|K>n  the  plea  of  set -oil',  a>  tiie  party  could 
not  take  advai!'.T:o  of  the  c  .  i*  beiti^  ilefective. 

l  the  only  <  i-c  ri-fern-il  to  on  the  set-ofl". 
^tipafufd  r-f.  Fle(c/nr,  4  T.  11,  511,  is  cer- 
tainly ^i«.(l  \\\\\ :  if  \\:i- there  considered,  that   pa\  ment   tt> 
the  landlord  by  the  subtenant,    i>    payment  to  the    tenant. 
All  the  authorities,  both  before   and  since   the   revolution, 
concur  in  establishing  that  a  plea  of  set-off  is  not  a  good 
plea  to  an   avow   in  replevin.     The  defendant  except i-d. 
":ct  ami  judgment  for  the  plaintiff,  and  the   defendant 
•••  tiled  to  thi-  court. 

l!<-     The  cause  was  argued   before  TILGHMAS,  NICHOLSOK. 

pMUtd  in..x    ht-    i.-t 

'.  '"and  GAM  r,  J. 

•ii.count,  altM     it 
wai  ii. 

"U^lTbAl^u      XhaafTi  Johnson,   (Attorn. -\    Ccneral.)    and  fan-Horn^ 
•  for  the  appellant,  referred  to  ill  •  -;aintt- (.f  •'  (in).  II,  ch. 
22,  *.  11.  8  Geo.  II,  ch.  -24.  I.  -i.  ':  .mil    the  act  of 
ch.  46, s.  7.    CM0n»fV.Cy  8&9 

II',,,.  Ill,  ch.  11.  Evc.ns r*.  Proaser,  :,  T.  /.'.   I 

Ktij  and  T.  Buchunnn.  for    the  appelle»-»,  (  iii  «1    flaske- 

II'.  ML  /,',/,.  •:-.):,.    «  liurr.  I -MO.  A'.  C. 

B      .  / :,it.  468.  3  Jf'ent.  160. 

&c.  1  Esp.  238,  239.  —  Lr.  liret  vs.  Pavilion,  4  Ilnst,  507- 
//      .  .\-  Johns.  3G5.  Reynolds  vs.  Beer- 
!'.  /.'.  188. 

TMF.  COUHT  of  APPEALS  reverted  the  judgment   ••( 
General  Court. 


OF  MARYLAND,  81 

SAU.NDERS,  et  ux.  vs.  SIMPSON,  et  ujc.  1807. 

JUNK- 
APPEAL  from  a  decree  of  the  Court  of  Chancery  dis-       ^^^^t 

missing  the  bill  of  complaint.     The  bill  filed  by  the  pre-       Saui£e ™ 
sent  appellants,  on  the  loth  of  November  1797,  was  for  a       si'nP»°n 

A  specific  jier- 

specific  performance  of  the  following  agreement,  executed  £[,^0cr%h°rcol*. 
on  the  28th  of  December  1777,  by  William  Andrew,  de-  eSe/in'"^?? 
ceased,  vi/,.  "Baltimore  county,  to  wit.  This  agreement  ^  ^,7^"^". 
witnesseth,  that  whereas  T,  William  Andrew,  of  the  said  $',-  %£?$  ™<£ 
county,  did  engage  and  promise  to  give  unto  my  daughter,  ^."fcd "oTfhe 
.Elizabeth  Saunders,  on  or  before  her  marriage  with  Mr.  ^l,",jn  W[1Va|i.  ver 
Robert  Saunders,  eight  or  nine  hundred  acres  of  land;  and  edited! iim't it wa»~ 
three  or  four  negroes,  which  land  hath  since  been  recovered  °  AB  equiubfeV 

,    tie  in  the  def'-nd- 

of  me,  so  that  I  cannot  give  her  that  land  1  promised;  and  ant  to  lands,  «iii 

,  .  ,   not  prevent   a  re- 

I,  the  said   William  Andrew,   have  now  settled  the  said  covery     asamit 

.          him  in   an   action 

Robert,  and  Elizabeth  his  wife,  on  my  Bush  River  plantation,  of  ejectment  bro't 

•>  r  by  a   pei-ion   hav- 

called  Jones?   Inheritance,  containing  three  hundred  and  ms  tiie  legal  title. 

(note) 

ninety-six  acres,  more  or  less,  and  also  a  tract  called 
Smith's  Discovery  thereto  adjoining,  containing  seventy- 
seven  acres,  more  or  less,  and  do  hereby  now  assign  Wil- 
liam Robinson's  bond  for  the  conveying  of  said  last  men- 
tioned tract,  unto  my  said  daughter  Elizabeth,  her  heirs 
and  assigns,  and  all  the  estate  I  can  or  may  claim  thereon 
and  thereby,  which  lands  I  mean  to  give  her  in  lieu  of  the 
lands  so  promised  to  her  as  aforesaid,  which  the  said  Robert 
and  Elizabeth  do  now  agree  to  take.  And  the  said  Robert 
hath  lent  and  advanced  me  at  several  times  divers  sums  of 
money — Now  I,  the  said  William  Andrew,  as  well  to  per- 
form my  said  promise  as  aforesaid  made,  as  for  the  money 
advanced  as  aforesaid^  and  for  divers  other  good  causes 
moving  me  towards  my  said  daughter  Elizabeth,  do  now 
agree  and  promise  never  to  remove  my  said  daughter,  nor 
her  husband,  from  the  said  lands,  but  they,  and  each  of 
them,  shall  and  may  have  and  hold  the  said  lands  under 
this  agreement,  from  the  date  hereof;  and  I  do  promise 
for  me,  and  my  heirs,  to  give,  convey,  and  perfect  her  titla 
and  right  to  the  said  lands,  I  mean  to  my  said  daughter, 
her  heirs  and  assigns,  either  by  my  last  will,  or  by  deed 
duly  executed,  at  the  end  of  a  lease  which  I  licretofore 
gave  them,  so  that  my  said  daughter  may  peaceably  possess 
and  enjoy  said  lands,  and  her  heirs,  for  ever.  In  witness 


11 


8*  CASES  IN  THE  COURT  OF  APPEALS 

180r.        thereof  1  have  hereto  set  my  Imnd  and  seal  this  28th 
I:rr. 


Saundrn 

Scaled  :i1111  denvwed  /r//«.  Andnw,  (L.  S.) 

in  prr-i-i: 

Abraham  Andrtw, 
.im 
(',,/• 

The  bill  stated,  that  Abraham  Andrew,  one  of  the  sub- 
scribing witnesses  to  the  agreement,  was  the  eldest  son  and 
heir  at  law  •>}"  ll'illiani  Andffir,  and  that  Averilla  Andrew 
and  rriiriUu  Colvin,  were  two  of  his  daughters.  That  Wil- 
liam Andrew  died  on  or  about  the  1st  of  February  1783, 
having  first  duly  made  and  executed  his  last  will  and  tes- 
tament, by  which,  after  devising  a  few  inconsiderable  le- 
gacies to  his  children  by  his  first  wife,  (one  of  whom  was 
Elizabeth,  one  of  the  complainants,)  he  devised  all  the 
rest  and  residue  of  his  estate  to  the  daughter  by  his  second 
wife,  by  the  name  of  Elizabeth  Dnrbin  William  Andrew, 
which  second  wife  had  been  the  house-keeper  for  William. 
Andrew,  and  by  him  kept  after  he  separated  from,  and 
during  the  life  of,  his  first  wife,  and  whom  he  intermarried 
with  after  the  death  of  his  first  wife,  having  had  issue  one 
daughter,  Elizabeth  Durbin  William  Andrew,  who  hath 
since  intermarried  with  John  Simpson.  That  Simpson, 
and  wife,  claiming  the  premises  by  virtue  of  the  will, 
brought  an  ejectment  in  the  general  court  against  the  com- 
plainant, Saunders,  and  recovered  judgment  for  the  pos- 
bession  of  the  same,  notwithstanding  they  knew  he  claim- 
ed the  same  under  the  above  mentioned  agreement.  That 
the  complainant  not  having  any  other  except  an  equitable 
interest  in  the  lanrls,  was  unable  to  defend  the  possession 
thereof  at  law.  and  was  obliged  to  suffer  a  judgment  to  bo 
entered  against  him,  and  seek  his  remedy  in  this  court  (a.} 

(a)  In  the  trial  of  the  ejectment  referred  to,  brought  l<y  Simp 
tonetfii  tjtftfe  n  Saunter*,  \n  the  general  court  at  October 
term  17'.«-i,  I  ir  .S  unfit'*  !)iirorrry  and  Jon's's  Inheritance,  the. 
plaintiff  proved,  thu  \\  ,11mm  Andrfic  being  seized  in  (ee  simple 
of  J»ne*'i  fti/ierttanct,  c|evj-<rd  ihe  same  to  the  wife  of  XimptoH. 
one  o<  the  letiora  of  tlie  plaintiff.  The  defendant  then  produced 
the  agreement,  or  instrument  of  writing,  put  porting  to  have  been 
e<er.ui«-<i  !  ,  a*  «et  Inrth  in  the  context,  and  prayed  the 

court  to  direct  the  jury,  that  if  they  should  be  of  opinion,  from 
etridrnce  tvSirh  iiight  he  offered,  that  the  *aid  instrument  of  wri 
lint;  «*»  dulv  r-xccnted,  then  the  effect  ot  the  instrument  was 
sufficient  to  entitle  the  defendant  to  their  verdict  for  the  tract  o! 


OF  MARYLAND.  83 

That  Abraham  Andrew  and  Averilla  Andrew,  two  of  the  1 807, 
witnesses  to  the  agreement,  are  since  dead,  and  the  com- 
plainants were  in  danger  of  losing  their  proof  to  the  exe- 
cution of  the  said  instrument  of  writing.  Prayer,  for 
subpena,  &c.  and  that  Simpson  and  wife  might  be  compel- 
led to  convey  the  premises  in  fee  unto  Elizabeth,  one  of 
the  complainants,  and  that  testimony  might  be  taken  and 
recorded  in  order  to  the  perpetuating  thereof,  &c.  Also 
prayer  for  an  injunction  against  proceedings  at  law  on  the 
judgment  in  ejectment.  Subpena  and  injunction  issued  ac- 
cordingly; and  a  commission  issued  de  bene  esse  for  taking 
testimony. 

The  answers  of  the  defendants  stated,  that  Saunders 
held  the  lands  mentioned  in  the  bill,  during  the  life-time 
of  Andrew,  as  a  tenant,  and  that  the  same  were  never 
sold,  or  contracted  to  be  sold  by  him  to  the  complainants, 
or  either  of  them,  and  that  the  writing,  or  bond  of  con- 
veyance, in  the  bill  mentioned,  was  never  executed  by 
Andrew,  but  is  a  forgery.  That  Andrew  devised  the  land 
to  the  defendant,  Elizabeth. 

Much  testimony  was  taken  under  the  several  commis- 
sions which  issued  for  that  purpose,  and  the  several  exhi- 
bits proved. 

Exhibit  E.  Is  a  letter  dated  Middle  River  Neck,  Octo- 
ber 20,  1773,  from  William  Andrew  to  Robert  Saunders, 
then  of  Queen-Anne's  county,  viz.  "Daughter  Betsey  has 
been  talking  to  me  about  living  over  here,  as  she  wants  to 
come  back,  and  if  you  will  come  over  again,  you  may  go 
to  Bush  River  plantation,  on  halves,  for  seven  years,  and 
then  the  place  shall  be  hers  instead  of  the  land  Bond  has 
recovered  against  me." 

Exhibit  R.  Is  a  letter  from  Tf'illiam  Andrew  to  Robert 
Sounders,  without  date,  but  is  in  answer  to  one  from  the 
latter  to  the  former  dated  the  8th  cf  December  1781, 

land  called  Jv7ies's  Inheritance,  But  the  defendant  did  net  offer 
any  evidence  to  prove  the  execution  of  Uie  said  writing. 

GOLD  SBOROUGH,  Ch.  J.  ( Chase,  J.  absent,  Duvall,  J.  con- 
curred.) The  court  are  of  opinion,  that  the  instrument  of  writ- 
ing produced,  even  though  the  same  should  have  been  duly  exe- 
cuted, is  not  of  effect,  to  bar  the  plaintiff's  recovery  of  the  land, 
mentioned.  Verdict,  guilty  as  to  Jones's  Inheritance,  and  not 
guilty  as  to  Smith's  Discovery.  Judgment  on  the  verdict;  from 
which  the  defendant  appealed  to  the  court  of  appeals,  vvher  e  the 
judgment  was  affirmed  at  November  term  1797. 

Key  and  Winchester,  for  the  plaintiff  and  appellee. 

Martin,  (Attorney  General,)  and  HolKngtworth,  for  the  defen- 
dant and  appellant. 


SJ,  CA>K>  IN  TI1K  rorRT  OF  Al'l'K\l,> 

1807.  mi  mentioned  by  If.  Chtmvber*  concerning 

land,   if  it  run-   I  "i    had 

bettor  l)ii\  in-  ;it  this  time.      I 

lliir.k  you  may  afford  to  b'iy  that  bit:  and  it  you  will,  I 
\\ill  bo  up  and  be  ; .  our 

Ertnbit  A.   1,  a  h«,!id  d.-.tnl  i!,-  I8(h  of  July  1 
filted  bv  John   AY».-;/.v;j  t,i  John    ( Hfi'ln,    and    condt 
for  the  comeyam  i-  10    (\>frin  of  ,"  i!   land   out    of 

Jones's  Inheritance  and    Smith's   •  they 

should  be  recovered  into  the  possession  of  AV/ri/ 

•/jyiV  Z.  Is  a  letter  from  Sinpsun  to  6o/rw?  without 
date,  and  is  as  follows:  "1  have  received  two  letters  froiu 
you,  the  first  I  did  not  understand,  but  the  second  explain- 
ed your  meaning  fully,  which  i*,  you  will  have  I.MHK -y  from 
me  at  any  rate.  First  you  say,  the  bond  is  not  valid,  now 
you  threaten  me  with  the  sale  of  it.  You  tell  me  J/nm- 
tnond  and  I  are  in  collusion.  I  tell  you  it.  is  more  probable 
that  he  and  you  are  in  collusion.  \Vas  not  every  thing 
that  was  done  about  that  business  at  the  particular  requc.->t 
of  you  and  your  mother.-  And  pray  how  i-  my  intere-t 
connected  with  //u/;i//i0mf»?  Exactly  in  the  same  way 
that  I  am  connected  with  you,  and  every  other  person  who 
has  ever  done  any  thing  for  me  in  Marylun<(.  \\\  \  a\  in^  an 
extravagant  price  for  it  all,  or  oldi^atin-  niy-t-lf  >o  to  do. 
a-k,  il  I  expect  to  keep  the  bond  until  it  becomes 
due,  that  1  derei-. e  iny«,rlf.  In  one  tiling  I  am  s'.uc  J  am 
not  deceived,  that  I  sliall  not  pay  it  twin-.  .UK,  1  do  not 
(.oiid'ixi-  it  will  be  more  e\|  eii*iM:  to  p;  mther 

than  to  you.  But  \ou  seem  to  think  1  mu-t  p;i\  h  io  ymj. 
whether  I  will  nr  not — In  thi>  let  me  tell  y<m,  you  deceive 
Miuoelf,  and  ^r.--l\  too.  Y«.M  vein  to  tlunk  I  (ai.not  do 
without  y  our  uv  'tin  f'e^ential 

importance  tome.      In  thi>  you  are  \vr.>;  •  knew 

for  what  purpose  I  wanted  her  tcstiiminy,  nor  doe*  she  un 

•and  it  herself,  neither  would  1  have  ti-hl  ;IP\    oi 
but  i  u\  to  iiifi.rm  you    to   |n--.,-nt    \.mrun- 

uinjt:  I  ini.i  infamx,  and  such  difficulties,   that  it 

Mill  be  impossible  to  (  M  yu  from.      The  real   inten 

tion  on  my  part  was  to  make  IPT  te>;imony  good  for  no- 
thing, which  i>do)ie,  she  having  ;die;;.;\  -\\oin  on  boti. 
of  the  question.  Now  you  expose  my  bond  for  ?-ale,  the  tliinj; 

(a  )  By  a  plot  made  of  the  lands,  i*  appeari  that  this  tract  run 
nearly  through  the  middle  of  Jonet't  Inheritance. 


OF  MARYLAND. 

public.  It  must  and  \viil  be  considered  asa bribe  1807. 
for  which  she  lias  perjured  herself.  To  prevent  any  <•;•• 
quence  of  this  kindc  was  my  inducement  for  exacting  a  pro- 
mise from  you  of  keeping  the  thing  an  inviolate  secret,  and 
which  you  promised  on  your  sacred  honour  to  perform.  It  was 
a  measure  I  disliked  in  every  step,  but  your  characters  and 
interest  being  both  connected  with  keeping  the  secret,  and 
your  most  pointed  promises  so  to  do,  I  thought  you  might 
be  trusted  without  risk  to  yourselves;  but  it  appears  as  if 
avarice  was  superior  to  every  other  consideration  with 
you,  and  that  without  looking  forward  at  ail.  Would  you 
h;ive  a  little  patience,  the  business  is  in  such  train  that  it 
cannot  be  long  until  you  will  get  the  money;  but  such  im- 
prudence on  your  part  may  put  it  off  to  a  later  period. 
How  do  you  suppose,  that  in  justice  to  myself  I  can  pay 
any  more  money,  when  there  is  any  uncertainty  that  I  may 
never  get  any  thing  in  return  for  it;  and  you  will  posi- 
tively receive  more  clear  profit  on  the  final  issue  of  this 
business  than  I  shall.  This  suit  has  already  cost  me  up- 
wards of  S400,  and  will  yet  cost  me  a  sum  I  cannot  cal- 
culate, besides  a  great  loss  of  time.  What  you  get,  you 
get  clear,  and  that  without  trouble  or  expense.  Had  you 
uie  in  your  power  in  such  manner  that  you  could  force 
money  from  me  in  this  way,  would  it  not  amount  to  abso- 
lute robbery?  And  do  I  deserve  it  at  your  hand  in  any  res- 
pect? I  have  felt  mj'self  under  obligations  to  your  mother 
'for  her  friendship,  but  if  she  is  privy  to  this  business,  it  is 
well  calculated  to  cancel  them  all.  I  shall  be  in  Jialfi- 
more  in  two  or  three  weeks,  and  hope,  in  the  mean  time, 
you  will  think  more  prudently  about  this  business,  other- 
ways  you  must  make  your  best  of  it,  and  I  shall  never 
have  any  connexion  with  either  of  you  again." 

HAXSO.V,  Chancellor,  (14th  of  March,  1805.)  Without 
acting  against  the  principles  which  have  governed  the  Chan- 
cellor in  several  former  decisions  which  have  been  affirmed 
on  appeal,  he  cannot  grant  that  which  is  prayed  by  the  bill. 
It  appears  to  him  indeed,  that  no  bill  filed  in  this  court 
praying  a  decree  to  compel  a  conveyance  of  land  on  au 
alleged  contract,  has  been  more  weakly  supported  by  the 
admissions  and  proofs  in  the  causei  But  it  would  be  irk- 
some to  the  Chancellor,  and  he  conceives  it  altogether  un- 
necessary for  him  to  give  his  opinion  at  large,  and  to  re- 


ST>  CASES  IN  THK  COURT  OF  APPK.U.- 

1807.       mark  particular^  .  -tiinmiv.     I'c  mrd,  tliat  th;.-  bill 

be  </<«»!  *#*<•</,  and  the  injunction  heretofore   i.—.m-d  be   dis 
ed. 

From   (his   decree  the   complainants   appealed    to   tlnV 
court,   and   the   case    was  argued   !)••('..  re  CHVSK,   Ch.   J. 
TiL(.:i--i\->.  NICHOLSON  and  UAMT,  J.  by 


Murlln,  It'uigtiij,  Shaiiff,  Johnson,  (Attorney  -General,) 
and  Price,  for  the  appellants  (a),  and  by 

A'o/aml  Harper,  for  the  appellt 

CHASE,  Ch.  J.  delivered  the  opinion  of  the  court.  It 
appears  to  the  court,  (hat  the  bond  dated  the  528th  of  De- 
cember 1777,  from  JJilliam  Andrew  to  Robert  Sounders, 
and  wife,  for  the  specific  execution  of  which  the  bill  \\as 
filed,  has  been  well  and  sufficiently  proved.  The  letter 
written  by  Andrew  to  Sounders,  dated  (he  20th  of  Octo- 
ber 17r.',  slums  the  foundation  on  which  (he  bund  \\as  exe- 
cuted, and  exempts  it  from  suspicion  of  fraud,  or  Ulicit 
contrivance.  The  bond  may  be  considered  as  the  fulfil- 
ment of  the  promise,  made  to  the  daughter,  contained  in 
that  letter,  and  is  strongly  corroborated  by  the  exhil. 
and  R.  The  conflicting  interests  which  prevailed  in  the 
family  on  the  death  of  Jlndrtv.;  the  disputes  consequent 
thereon,  and  contrivances  formed  by  the  parties  to  get  as 
much  of  his  property  as  could  be  obtained  in  the  general 
sci  amble,  have  exhibited  a  scene  of  iniquity  and  COITUJ,- 
tion  seldom  brought  to  the  view  of  a  court  of  justice. 

The  n.ndrct  of  Sounders*  altho'  highly  reprehensible,  in 
the  iwtl'.i'ds  adopted  and  pursued  by  him  to  get  ;L  confirma- 
tion of  his  wife's  right  to  the  lands  in  question,  or  t 
cure  it  to  himself,  cannot  defeat  or  diminish  the  wife's  equi- 
table li-zt't  and  interest  thus  acquired  by  her  father's  Idler, 
confirmed  by  the  possession  given  pursuant  thereto,  and  b\ 
his  bond  \'^  ^,'",ulcr». 

And  for  thej-e  rr;.>,,ns  the  court  do  reverse  the.  deer 
the  Chancellor,  with  costs  to  the  appellants;  and  do«!. 

:ind    adjudge,  that  Simjismi  and  wife,  by  a  good  and 

suffici'-ni  <  on\c^aii(  «•  in  la\\.  do  -I'ant.    coim-y  and    make 

.  to  Elizabeth  X,t>:iiders,  and  her  heirs,  for  ever,    the 

(n)  They  citrd  2  Stra.  lO.'C,.  1  Illk.  Rep.  365:  and  4  llnrt  . 
22i4,  lo  »l  ow  that  «  will  mijht  be  eMaMM.cd  ttn.i.-li  the  tiir.  • 
subscribing  witnesses  (hereto  denied  their  handwriting. 


OP  MARYLAND.  87 

lands  called  Smith's  Discovery  and   Jones's   Inheritance;  1807. 

and  that  Simpson  and  wife  be  perpetually   enjoined    from  ^^^ 

proceeding  at  law  on  the  judgment  in   ejectment   obtained  Rinr,,w 
toy  them  against  Suunders  and  wife. 

DECREE  REVERSED,   &C. 


CHENEY  vs.  RINGGOLD,  et  aL  Lessee.  DECEMBER, 

ERROR  to  the  General  Court.     The  defendant  in  error    whether  or  not 

^  .•  P  c  20  years  exclusive 

•brought  an  action  of  ejectment  m  that  court,  tor  a  tract  ol  and  unmixed  Pos- 
land  called  The  Number  of  Two,  situate  in  Washington  >A'^n\  by  "uith-a- 

,  ,  ,  tion   and   general 

county,  within  the  reserve  of  Conococheaque  Manor,  and  use,  without  an 

actual    enclosure, 

containing;  1970  acres  of  land.     The  defendant,   (the  pre-is»&ch  a  possession 

as  will  bar  a  reco- 

sent  plaintiff  in  error,)  took  defence  on  warrant,  and  plots  very  m  ejectment? 
were  made.  At  the  trial  at  May  term  1803,  the  defen-  ^whether  or  not 

4  20  years  po-sessiou 

dant  offered  in  evidence,  that  several  Manors  existed  in  ^^/V^  actual 
Maryland  prior  to  the  year  1730,  which  were  the  private  eIulct|10vs*re,nwithaan 
property  of  the  then  Lord  Proprietary,  and  that  the  follow-  S%ejj""4e£ 
ing  order  issued  from  the  Proprietary,  on  the  £8th  of  June  ^e'^^SS  ily 
1731,  (o  lay  off  reserves  on  and  round  his  Manors,  viz.  anTgSicra"""^ 
*'Sir,  Whereas  his  Lordship,  the  right  honourable  the  rp  i^Jectm™" of 
Lord  Proprietary  of  this  province  of  Maryland,  hath  or-  cuL^'oKm?6"" 
dered  to  make  a  resurvey  upon  all  his  Honors,  Manors  arid  tiff  with  title?  ha£ 

-ri  i    A  i  ji  Liii  i-   ji  •     in£   possession  by 

Lands,   and  to  enlarge  the  same  on  both  shores  of  this  enclosure  and  cut- 

r     i      i  .,1  i  i     i     ir     e   ,1          •    i  ,  tivationofa   part 

province;  I  do  hereby,  in  the  name  and  behalr  ot  the  right  of  a  tract  of  land, 
honourable  the  Lord  Proprietary,  order  and  require,  that  whole,  and  the 

defendant,    with.. 

you  forthwith  cause  a   reserve  to  be  entered  for  his  Lord- Ollt  title«  having 

possession   by  •  1 11- 

ship  on  all  vacant  lands,  rough  or  cultivated,  and  on  all  c'J)8'ire  of  a  Part 

of  the  same  tract, 

lands  that  are  or  may  become  escheat   or  forfeit  to  his  W1'h.  tUe  u.5e  Jby 

*  cutting       timber. 

Lordship,  adjoining  to  ami  of  his  said  Honours,  Manors  ^cj  of  tlie1°lne«- 

••     •>  |>ai'tsnot  incloseil, 

or  Lands,  or  witliin  the  distance  of  three  miles  from  them,  bound'"b'"^he  act 
or  any  of  them;  and  that  you  likewise  acquaint  the  seve-  °n!!tmpart0oStathe 
ral  surveyors  within  this  province  thereof,  that  they  may  [n"d  p^Son  «" 
behave  themselves  accordingly.  Given  under  my  hand  actulf  "nX\u^ 
ilus  28th  day  of  June,  Anno  Domini  1731.  «,J?SL^2 

TI        7%.      T          «  -i     x-«    T  lnfT   'lie   brine-iiiE: 

BencPt.  Leorfd.    CulVCri.        his  ejectment,  but 

To  Philemon    Lloyd    Esquire,    Deputy    Secretary   of  used 'by  thepade* 

•mr         i        !  fendant     exterior 

Maryland.  to  the  encio«ai*. 

T  When    tvo  are 

"In  pursuance  or  the  above  order,  a  reserve  is  herebvin  "lixed  p«sses9>- 

.  ~on    ot    the    ^anie 

made  ior  and  to   the  use  of  his  said  Lordship,  on  all  va-  laml<  one  by  titte« 

and  the    other  by 

cant  lands,  rough  or  cultivated,  and  on  all  lands  that  arc  *',™j£;  the  /-"^ 

having    the   title, 
as  in  possession  to  the  extent  of  his  right 

The  act  of  limitations  did  not  attach  or  run  against  the  Loixl  Proprietary  on  anr  possession  of  vacant 

•Mh 


(  ASKS  IN    !  Mi    t  di  RT  <>•••  Al'I'K  •.  • 

1807.       .  •••  cscheatuble.   or  nny  w*rs   fe.-.fcit    < 

of  his    Hoii'nr  -.     '  ' 

llUlds,  or  \\i'!iin  the  <li-'.m.  >•  of  three  ::.':'•  r-  from  them, 
or  any  of  them.  To  all  conccnu-l."  Th<-  defendant  then 
read  in  evidence,  the  certificate  oi  <  '  '<<n<»\ 

thereby  v\a-  leMirvryed  on  tin-  33th  of  October  1  7.^>,  I" 
ord°r  of  Xmiwel  O<fle.  Esquire,  *  lmnl, 

for  tlic  use  of  IMC  1.  :"t;irs.  n\^   LonNiip*,  Manor 

of  land,  l\inu:   >n    ''rinrc  ffrnr^r"^  c-tunty,  c-llnl   < 

'liny  to   its  first  inU'ndnl    b<uni'ls.    !•,«•- 
fee.  roM(aini»'i    Ki.^JM  ncre^   of  h.'i-!. 
in  evidence  the  wtrMBt  ^hi'-'i  i-«'icd  on  'In-  (1th  of 
June  K  52,  l.)  '  '  .  :  .  paid 

50s.  sterlii  "i  for  the  same; and  i  to  |iro\e, 

that  in  jHii.-nanre.  of  th.it  warrant,  a  survey  -.vas  made  for 
('/iru<t/ un  the  l.'th  of  November,  17.v2.  and  a  certificate 
thereof  returned  in  .  •  a  tract  of  land  tailed  f'/ir- 

>if/'.  -  ol   land,   to  be   held    of 

.SIM!  thai  the   • .  of  siirvev 

-.amined  and  j!a--«ed  on  the  30th  of  March  17:54,  and 
the  conipo-iiion  ni"  p.iid  thereon    in    April     1 

He  also  ottered  to  prove,  that  C.'HU-I/  irmiu'diately  after  the 
-nrxey,  t-ntered  on  the  land,  rlaiminu;  the  \\hole  as  his  right 
and  proper! v.  and  died  in  pi.s-e^i.iii  thereof  in  1780;  and 
that  the  certificate  of  survey,  and  the  hind  therein  incltid 
«nl,  called  Cheney's  JJclig/it,  arc  truly  located  by  the  de- 
fendant on  the  iiiutr  in  tl.i-  <  au-e.  And  that  Chniry  built 
MI,  imp.roM-d  ;md  cultivated  pavl,  and  tut  and  u>t-d  the 
\\ood  trro\\in^  thereon,  claiming  the  whole  until  his  death, 
a^  :ii>  ri^ht  and  proper!  \;ai.  OD  tlie 

death  of  Clirnnj,  hi-  la:!  .  entered  on  the  said  land, 
(hiiui'm  :  :  •!.-:iinij;  to  the  loca- 

tion and  ivrttfi'  I.     And   f  .    t'ie    an 

,  ant'  tli'-   del.  .,•;.!-,  .-nd    held   by 

11  for  uior.-  Mian  tinnh/ 

-  next    j.r.-ced'niu.    the    l'ri:i','il)-    of  .im-tit,    all 

that  part    <.f  ('/'.'.>•  •;"*    //'•'/..'/   v.lii.h    i-  contained    \\ithin 
ines  shaded   blue,  as  located  and    docribed   on   the 
.  claiaiiny;   the  enrlo-'d    land,  and    the   whole  of  the 
•  :'Mi  proper  estate  an,!  d   that   all 

the  land,   as  located  within    Chum/'*  .'  \lerior  to 

-•ires  shaded  bh:e,  has  been  claimed  and  used  in 
,  ami  tlior-e  claiming  mi.!  r  hii-i,  as  ; 


OF  MARYLAND.  89 

lielight,  exterior  to  the  enclosures  shaded  blue,  has  been  1807. 
claimed  and  used  by  Cheney,  and  those  claiming  under  v— v—* -* 
him,  as  part  of  Cheney's  Delight,  ever  since  the  year  1762, 
by  cutting  wood  and  rail,  and  other  timber  thereon,  for  the 
use  and  purposes  of  their  dwelling  and  farm,  on  said  land; 
and  that  no  other  person  whatever  has  at  any  time  used, 
enjoyed,  or  cut  any  of  the  wood  or  timber  on  the  land,  ex- 
cept Cheney,  and  that  no  person  has  claimed  the  same,  or 
any  part  thereof,  except  that  a  claim  has  been  set  up  by  the 
lessors  of  the  plaintiff',  and  those  under  whom  they  claim. 
That  Cheney's  Delight  is  included  within  the  lines  of  a 
tract  of  land  called  The  Number  of  Two.  The  plaintiff" 
then  showed  in  evidence,  that  on  the  certificate  of  survey 
of  Cheney's  Delight,  no  patent  ever  issued,  and  that  the 
reason  why  a  patent  was  refused  upon  that  ceiiificate,  is 
indorsed  thereon  in  the  words  following,  viz.  "No  patent 
to  issue  on  this  certificate,  by  order  of  his  Excellency,  be- 
ing within  the  reserve  of  Concgocheigue. 

Test.   ,  IF.  Sieuart,  Clk." 

He  tlien  offered  in  evidence  a  patent  for  The  Number 
of  Two,  (being  part  of  the  reserve  around  Conegocheigue 
Manor,)  granted  to  John  Morton  Jordan  on  the  15th  of 
July  1768,  and  which  is  the  land  for  which  this  ejectment 
is  brought,  and  which  is  truly  located  on  the  plots.  He 
then  read  in  evidence  a  deed  from  Jordan  to  Tliornas  Ring- 
gold,  dated  the  26th  of  October  1770,  for  the  land  called 
The  Number  of  Two;  also  the  will  of  Thomas  Ringgold, 
dated  the  16th  of  February  1774,  whereby  he  devised 
the  said  land  to  Benjamin  Ringgold,  his  son^  in  fee  simple. 
And  he  proved,  that  B.  Ringgold  died  on  the  26th  of 
August  1798,  without  child,  and  intestate,  whereby  the  said 
land  descended  to  his  three  brothers,  Thomas,  Samite', 
and  Tench,  and  his  sister  Anna  Maria,  who  before  tiii.s 
ejectment  was  brought  was  and  still  is  a  married  woman, 
the  wife  of  Frisby  Tilghman;  that  the  last  named  Thomax 
Ringgold,  by  deed  ot  bargain  and  sale,  on  the  — • —  day 
of  October  1798,  conveyed  all  his  interest  in  the  said  land 
to  his  two  brothers  Samuel  and  Tench,  which  said  Samuel 
and  Tench,  together  with  Frisby  Tilghman,  and  Anna 
Maria  his  wife,  are  the  lessors  of  the  plaintiff*.  That  Jordan, 
the  patentee,  entered  upon  The  Number  of  Two,  claim- 
ing title  to  the  whole  thereof,  according  to  his  right,  until 
he  sold  the  same  to  Thomas  Ringgold.  That  T.  Ring- 

VOL.    II.  1-2 


<JO  CASES  IN  THE  COURT  OF  Al'l'KA 

18OT.  ZoM,  after  tlio  conveyance  from  Jordan  to  him:  //.  Ring* 
zold,  after  the  death  of  his  father,  bv  liis  guardian  and  IJN 
himself:  and  the  lrv.ot>  of  the  plaintiff',  after  the  death  of 
B.  ftinzzold.  re*pecmely  entrn-d  upmi  ihr  -aid  land,  and 
by  himself  and  themselves,  and  his  and  their  tenant*,  p,,- 
.1  and  enjoyed  a  part  thereof  by  actual  culihation  ami 
enclosure,  and  claimed  title  lo  the  whole  thereof,  accord- 
ing to  his  and  the'n  \e  rights  vi/.  T.  HinggoM 
until  his  death  in  November  irr<>:  I>.  Jti.-i^^o/il  until  hi* 
death  in  August  IT'JS;  and  the  les-ors  of  the  plaintiff  until 
the  time  of  briniiing  this  ejectment.  That  Jordan  re-idul 
>n  the  city  nf  ^n/Kiftolix,  (H.^tant  from  the  land  upwauls  <il 
1<K)  miles.  That  T.  Ringglid,  tlie  elder,  resided  at  C'/iu>- 
fir-Tuu-u  in  this  state,  distant  upwards  of  'loo  miles  from 
the  land:  and  that  the  guardian  of  DtJKNggoMj  during  his 
Minority,  resided  upwards  of  100  miles  from  the  land. 
That  /,'.  Ii'in'*ifol(l  was  born  on  tiie  tith  of  January  17T4, 
and  on  the  17th  of  September  1700,  in  the  name  of  his 
.  in-  instituted  an  action  of  ejectment  against  the 
,i  »ii  It  ndant,  in  the  general  court,  for  the  recovery 
of  the  land  now  sued  lor  by  the  present  plaintiff',  against 
the  present  defendant:  and  that  the  action  \\as  depending 
and  undetermined  \shen  Ji.  Jlinifgoltl  died,  and  that  it  did 
abate  by  his  death,  and  was  so  entered  at  October  term 
17W.  The  plaintilf  also  offered  in  e\idence,  by  the  same 
\\itnesses  v. ho  wen-  examined  by  the  defendant,  that  <lie\. 
the  witnesses,  ahvay-  under-Moml  tli.u  ( 'h< m //'.v  fjt/i^ht  \\a- 
allied  to  lie  witliin  the  reserve,  of  Conogochtagut  Manor, 
and  tlierefore  '  tn  nf  d'n n> /.•*.>•  Jhli-jlit  could  not 
obtain  a  patent  therefor.  The  defendant  then  praved  the 
t.pinl'.n  of  the  court,  and  their  direction  to  the  jury,  that 
if  they  find  the  fads  as  stated  l*y  the  defendant,  that  then 
-.01 ,  of  thf  plaintiff  weiv  l>arred  fiom  making  title 
l.iai\vp;ti;  <•!  <  ":<  in  i/*.v  /)r/i:fht,  for  the  reason  that  the 

-    inclnded  in  the  lines  of  '/'//•     \ 
)or  \\hkh  the  tjei  tment  i-  brought. 

(  n  \sr.  Ch.  J/a.j  The  court  refti»«  to  give  th*  dire. 
j>ray«<V   being  »f  pinion  that    r.othing   less  than  tu 
years  advene  p«»esHi')n,  by  actual  enclosures,  will  bar  or 
defeat  the  titl«>  of  the  plaintiff  in  this  case.     The  defendant 
cKeepted.      1'mlirt  for  t;  V  according  to  hit  pre- 

fa)  Done,  and  Sprigg,  J.  concurred. 


OF  MARYLAND.  Ql 

tensions,  except  as  to  the  lands  located  on  the  plots  as  in-       1807. 
eluded  in  lines  .shaded  blue,  as  to  which,  verdict  for  the      ^— ~-r~^-f 

f  Cheney 

defendant.    Judgment  being  rendered  on  the  verdict  for  vs 

the  plaintiff,  the  defendant  brought  a  writ  of  error  to  this, 
court. 

At  December  term  1806,  the  cause  was  argued  before 
BUCHANAN,  NICHOLSON,  and  GANTT,  J. 

Key,  Shaajf,  and  Hughes,  for  the  plaintiff' in  error,  in  their 
arguments  cited  3  Blk.  Com.  209.  Cutten  vs.  Johnson, 
2  Stra.  1142.  Fisher  vs.  Prosscr*  Coivp.  217.  JSsp.  N.  P. 
434.  Ridgehfs  Lessee  vs.  Ogle  ty  Leonard,  4  Harr.  <$'  M'-Hen. 
123.  Ring  gold's  Lessee  vs.  Malolt.  1  Harr*  S:  John.  299. 
RusselPs  Lessee  vs.  Baker,  Ibid  71. 

Martin,  Mason*  and  Johnson,  (Attorney-General,)  ar- 
gued for  the  defendant  in  error. 

Curia  Ad.  Vult. 

At  this  term  the  court  pronounced  their  judgment. 

BUCHANAN,  J.     The  facts  stated  in  the  bill  of  excep- 
tions taken  in  this  case  are,  that  prior  to  the  year  1730, 
several  manors  existed  in  Maryland,  which  were  the  pri- 
vate property  of  the  then  Lord  Proprietary;  that  on  the 
28th  of  June  1731,  an  order  issued   from   the  Lord  Pro- 
prietary to  lay  off  reserves  on  and  around  all  his  manors; 
that  an  order,  the   date  of  which  does  not  appear,  issued 
from  Samuel  Ogle,  the  then  governor  of  Maryland,  to  re- 
survey  for  the  Lord  Proprietary  his  manor  called  Conogo- 
chiespte  Manor,  in  pursuance  of  which   order,  that  manor 
was  resurveyed,  and  a  certificate  thereof,  dated  the  25th 
<t  October  1736,  was  made  out  by  the  proper  officer,  and 
returned  to  the  land  oJice;  that  a  reserve  was  laid  off,   on 
and  around  the  said  manor,  and  that  afterwards,  on  the 
6th  of  June   1752,   Charles    Cheney  obtained  a  warrant 
from  the  land  office;  in  pursuance  of  which  a  survey  was 
made  by  the  proper  officer  for  and   in  his  name,   on  the 
15th  of  November  1752,  of  a  tract  of  land  called  Cheney's 
Delight,   and  a  certificate  thereof  made  out,   which   was 
examined  and  passed  by  the  examiner  general  on  the  30th 
of  March   1754,   and  returned  to  the  land  office  on  the 
17th  of  April  1762,  when  the  composition  money  thereon, 
and  the  rent  to  that  day  were  paid,  and  on  the    10th  of 
June  1767,  the  rent  to  that  time  was  also  paid;  that  on 


93  t  \M.-  IN  THK  COIR  ;  <>i-  AIM'!:  \i, 

1807.       thi*  certificate  a  j atent  \va>  rctu-ed.  becaii-<  \  /;,- 

liz/i!  lav  \\itl..  '  •,  and 

that  no  urant  !.,.  ;  lhat    rn  the   7 Mi   of 

'M.mh  1769,  John  Morten  .loruitn  obtained  a  patent  fora 
tr.ict  of  land  railed  Tin  .\nn<tnr  cf  T  .  a  part  of 

the  ri  /•„   from  whom  the 

l.-^al  title  la  Tin-  .\:n:il  <  r  of  T>f>  i-  n  -iib.rlv  deduced  to 
the  lessors  of  the  plaintiff,  and  that  C/tturi/'a  fhUxhf  lie.-, 
within  the  lines  of  The  Number  of  Tiro.  '  t  r.nrlcy 
Chrncij,  for  \vhom  Chcnri/'x  Delimit  \\:.  d,  and  the 

defendant  in  the  court  bvluw  have  lived  thereon  ever  since 
the  Mir\ev,  iising  the  pai's  exterior  to  the  enclosures  ever 
-hue  the  year  17('>2,  by  cutting  wood,  rails,  and  other  tim- 
ber thereon,  for  the  use  and  purposes  of  the  farm;  and  for 
more  than  twenty-seven  years  next  preceding  the  institu- 
tion of  the  suit,  have  been  in  the  actual  possession,  by  cul- 
tivation and  enclosure,  of  a  part  of  the  land  lying  within 
the  lines  of  Cheney's  Delight,  claiming  title  to  the  whole; 
and  that  the  lessors  of  the  plaintiff',  and  those  under  whom 
they  claim,  have,  ever  since  the  grant  of  Th(  dumber  of 
Tim,  possessed  and  enjoyed  a  part  thereof  by  actual  cul- 
tivation and  enclosure,  claiming  title  to  the  whole,  accor- 
ding to  their  right.  It  is  contended,  that  the  order  to  lay 
reserves  around  the  manors  of  the  Lord  Proprietary,  dated 
the  50th  of  June  17.31,  was  not  Applicable  to  the  Conoco- 
chcapf/i  Mciinr,  which,  as  it  is  said,  was  surveyed  in  the 
5,  Mibsequent  to  the  date  of  that  order;  that 
therefore  the  reserve  on  that  manor  was  unauthorised  and 
void,  and  that  a  patent  for  Cheney's  Delight  was  iinpro 
jiejlv  withheld.  Hut  the  certificate  of  Conococheagtte  Ma- 
nor, dated  the  25th  of  October  1736,  is  evidently  a  certi- 
ficate of  resurvey  recognizing  an  original,  and  having  for 

•mdation  an  order  from  the  then  gouvnor  of  .^fan/hmd 
to  resurvey  Conococheagve  Manor,  and  for  any  thin-  ap 
j  eaiint;  in  tin-   ic(i/rd,the   original  suixey   of  that   manor 

'  \\.\v  been  untfiior  to  the  date  of  the  order  to  lay  oft' 
re»er>es.  But  vhcthcr  anterior  or  not,  a  reserve  \\as 
made  around  Lonocochraguc  Manor,  and  afterwards  the 
\\ari.irn  granted  to  (  !itunj  on  the  Gth  of  June  175:,  was 
located,  (as  aj  ;  'he  afore<i(.iii<i  statement  of  t 

within  the  lines  of  that  reserve;  and  for  that  reason  it  \\a- 
ordered  and  determined,  that  a  patent  should  not  issue  on 
the  certificate  of  Cheney'*  Delight.  And  whether  the 


OF  MARYLAND. 

judgment  of  the  judges  of  the  land  office,  was  correct  or        1SC7. 
not,    or   \\hethcr  the  reserve  laid  oft'  on  Conococheague 
Manor  was  properly  or   improperly  made,   is  not  now  for 
us  to  decide,  nor  is  it  material  in  the  consideration  of  this 

case. 

A  patent  did  issue  for  The  Number  of  Two,  which  does 

not  appear  to  have  been  ever  vacated;  and  so  long  as  it  re- 
mains unvacated,  if  there  is  no  elder  patent  covering  the 
same  land,  or  other  grant  overreaching  it  in  law,  (neither 
of  which  appears,)  it  operates  to  vest  in  the  patentee,  and 
those  claiming  under  him,  the  title  to  all  the  land  lying 
within  its  lines,  whether  the  order  to  lay  off  reserves  is  ap- 
plicable to  Conocochcague  Manor  or  not,  and  whether  a 
patent  for  Cheney's  Delight  was  properly  or  improperly 
withheld. 

To  recover  The  Number  of  Two,  this  suit  was  institut- 
ed, and  defence  was  taken  for  Cheney's  Delight,  which,  it 
appears,  lies  within  the  lines  of  •  The  Number  of  Two,  and 
for  which  no  patent  ever  issued.  Therefore  the  defence 
taken,  wras  not  on  title  derived  by  grant,  but  grew  out  of 
the  possession  in  the  defendant,  and  Charles  Cheney,  un- 
der whom  he  claims,  of  a  part  of  Cheney's  Delight,  by  ac- 
tual enclosure  for  more  than  twenty  years  before  the  time 
of  bringing  this  suit,  with  a  continued  enjoyment  from  the 
year  1762,  of  the  parts  not  enclosed,  by  cutting  timber, 
&.C.  exterior  to  the  enclosures.  Hence  the  only  question 
is  on  the  operation  of  the  act  of  limitations  upon  that  pos- 
session. 

I  shall  not  go  into  an  examination  of  the  questions,  whe- 
ther twenty  years  exclusive  and  unmixed  possession  of  a 
tract  of  land  by  cultivation  and  general  use,  without  an 
actual  enclosure,  is  such  a  possession  as  will  bar  a  recove 
ry  in  an  action  of  ejectment?  Or  whether  tvventv  years 
possession  of  a  part  of  a  tract  of  land  by  actual  cultiva- 
tion and  enclosure,  with  an  exclusive  and  unmixed  enjoy- 
ment of  all  exterior  to  the  enclosure  by  sparsim  cutting 
and  general  user,  will  bar  a  recovery  in  ejectment  of  the 
parts  not  enclosed?  For  although  they  are  questions  of 
considerable  importance  in  this  state,  and  whatever  my 
opinion  touching  them  may  be,  yet  as  they  are  not  involv- 
ed in  this  cause,  it  is  not  necessary,  nor  perhaps  would  it 
be  proper,  to  decide  upon  them  now. 


i    i  FUR  COURT  OF  Al'PKAL.s 

1807.  The  .y.u^fion    in  the  court  below  grew  o::f   «.('  tli>-    > 

;M  the  cause;  and  that    the    opini- .:-.    from    which 
this  is  an  appeal,  was  given  upon  those   facts,   and  \vitli   ;i 
to  th«?  particular  case    then    under   o •  •  on,    i- 

evident  from  the  opinion   itself,    which    i>  in  these   vonl-: 
'•Nothing  li>>s  tlian  twenty  years  ad\.  -inn  by  ac- 

tual enclosure  will  bar  or  defeat  the  title  of  the  plaintifTin 
this   (a-."      Vml  I  concur  with  liie  ^rneral  court  in  that 
opinion,  admitting  all  the  facts  stated  in  the  bill  of  c 
tions  to  be  true. 

This  is  a  case  of  two  conflicting  claims,   in    which    tin 
pretensions  of  both  paiiies  are  set  out.     Th«  lessors  of  tho 
plaintiff  with  title,  having  possession  by  enclosure  and  cul- 
tivation of  a  part  of  the  tract  of  land  in  dispute,  rlaimin^ 
the  whole:  and  the  defendant  without  title,  having   i 
sion  by  enclosure  of  a  part  of  the  same  tract  of  land,  witlx 
the  use  (bj  cutting  timber,  &.c.)  of  other  parts  not  enclo- 
M-d.     As  to  that  part  of  the  land  which  was  in  the  p< 
sion  of  the  defendant,  and  his  ancestor,   Charles  Cheney, 
by  actual  enclosure  for  more  than  twenty   years  next   pre 
ceding  the  bringing  of  this  suit,  the   plaintiff'  is  bound  by 
the  act  of  limitations;  but  not  as  to  the  parts  u»ed  by  tin- 
defendant  exterior  to  the  enclosure. 

When  two  are  in  mixed  possession  of  the  same  land 
one  by  title,  and  the  other  by  wrong,  the  law  ccn-ider- 
him  having  the  title  as  in  posM^ion  to  the  extent  of  hi> 
ritfit. 

The  act  of  limitations  did  not  attach  or  run  atjain>t  tin 
Lord  Proprit'ary  on  any  possession  of  vacant  land>:  ami 
even  if  it  could  have  run  against  him  as  to  the  land  in 
question,  he  was  not  barred  by  the  possession  of  Churli  -.• 
Chun  i/  on  the  7th  of  March  1769,  the  date  of  the  grant 
of  77r  \  -.-of  Tiro. 

And  \\haN-\er  mi^ht  have    !•  t  t!.«- 

tade  bv  the  defendant,  and  hi.-  ancestor,  of  tln»>e 
parts  of  The  Xtnitlnr  of  Tiro,  claimed  by  them  exterior 
to  th:  CD  l>\  -|.ai-im  cutt'urg,  for  twt- 

preci-ditc  'he  institution  of  this  v.iif,  in  ca^c  the  pun 
had  n-jver  entered  and  obtaim-il    pi.-^r^'nin   lu-fdri'   or  dur 
in-i  that  user,  and  no  mixed    ;  li.n!    full 

in  thin   case   it  .    that   John  Morten.  Jurdiui, 

grantee  of  Tlic  Number  of  Tiro,  and  those  claiming  umlei 
him,  did  immediately   after  the   date   of  the  grant,    and 


OF  MARYLAND. 

•Vi thin  20  years  from  the  commencement  of  any  possess!-  1807. 
on  in  Cheney,  enter  upon  and  take  possession  of  a  part  of 
The  Number  of  7Vfe»Jbj  actual  enclosure  and  cultivation, 
claiming  title  to  the  whole,  and  have  ever  since  so  posses-  • 
sed  and  claimed ;  and  the  possession  of  part,  gives  in  law 
a  constructive  possession  of  the  whole.  This  principle 
may  be  extended  to  both  parties  in  this  case,  and  each  may 
i>e  considered  as  having  been  in  possession  of  the  land 
claimed  by  him,  according  to  hia  right,  and  the  true  extent 
of  his  lines,  with  the  exception  of  the  parts  enclosed  by 
•i he  other — the  defendant  of  Cheney' 's  Delight,  and  the 
lessors  of  the  plaintiff  of  The  Number  of  Two,  which  in- 
cludes all  Cheney's  Delight;  or  in  other  words,  the  defen- 
dant of  a  part  of  The  Number  of  Two,  according  to  cer- 
tain alleged  lines,  and  the  lessors  of  the  plaintiff  of  all 
Tlz  Number  of  Two,  except  the  parts  thereof  enclosed 
by  the  defendant.  Their  possessions,  therefore,  of  those 
jwirts  of  Cheney's  ^Delight  not  enclosed,  or  rather  of  the 
unenclosed  parts  of  The  Number  of  Two,  claimed  and 
used  by  the  defendant,  (for  there  appears  to  be  no  such 
•grant  as  Cheney's  Delight,)  were  mixed  or  conflicting  pos- 
sessions, on  which  the  statute  of  limitations  could  not  at- 
(ach  or -run,  so  as  to  bar  a  recovery  by  the  plaintiff,  who, 
if  the  facts  stated  in  the  bill  of  exceptions  are  true,  is  the 
-legal  owner. 

Even  if  the  defendant's  possession  by  enclosure  com- 
mesced  first,  which  is  pot  stated  to  be  the  case,  that,  ami 
his  cutting  timber  exterior  to  the  fences,  could  not  have 
prevented  the  constructive  possession  vesting  by  operation 
of  law,  in  Jordan,  of  all  the  unenclosed  parts  of  Tiie  Num- 
ber of  Tiro,  on  the  actual  entry  and  enclosure  made  by 
him,  and  those  claiming  under  him,  upon  a  part  of  that 
tract  of  land,  within  twenty  years  fit>m  the  date  of  the 
.jratit,  claimingtitle  to  the  whole,  ijut  if  the  possession, 
by  enclosure,  of  the  lessors  of  the  plaintiff,  and  those  un- 
der whom  they  claim,  commenced  first,  and  for  any  thing 
appearing  In  the  record  that  may  have  been  the  fact,  sure- 
ly no  cutting,  &c.  by  the  Chenci/s,  exterior  to  their  enclo 
hures,  could  so  divest  tfee  possession,  cast  by  law  upon,  the 
plaintiff,  of  the  unenclosed  parts  of  The  Number  of  Tico, 
as  to  let  in  the  operation  of  the  act  of  limitations. 

Upon  the  whole,  I  consider  the  question  in  this  case  to 
be.  whether  t\venty  years  mixed  possos-ion   of  unenclosed 


c  ISE9   IN    I' UK  (QUIT  OF  Al>I'K.\L> 

180".       lands  can  operate  to  bar  a  recovery   in  ejectment  by  thr 
I'ul  owner,  he  being  one  of  the  posses- 

On  tlii-  t|in'*Mon    I  feel  no  doubt,  aiul  therefore    am   of 
opinion  that  the  judgment  of  the  general  court  inigh' 
;i  Tinned. 

.'.  C!)MCIMTCJ. 
-  i  i ,  J.  i!i-M  ::'cil. 


DH  NORWOOD'S  Lessee. 

A  mrmor»n''i>m  AppKU.  from  the  General  Court.  The  appellee  bn>u<;!if 
ike  ircorj  »f  ma:.  '  f«»r  a  tract  of  land  called  Tin  \ 

dred.  tintintr  Out  •  •          i.     f   •  •     • 

ibr<««irh*.i  t,  ,•   lying  MI   Baltimore  county,  containing  520  a 

nltrml.  fer    i,  n  ,i 

:••  and  an  l.ulf  acre  of  land.     The  defendant,  (now  appellant,) 

.arrant,  and  pl>.N  v.  riv  returned. 

&T!  .vl     „  «      '•  '  '  exception*.   The  plain  till'  at    the   trial   at 

•••rm  1804,  read  in  e.id.-nce  the  pat.-tit    of  a  tract   of 

Hid  rulli-.1  v,  granted  to  T  ,,>,ni 

*&££  "  won  toe  10th  of  November  169J,  for  1000  acres.     Alan  the 

^^"•it'T,,^  grant  to  .Vurw-.w../,  tl»e  lessor  of  the  plaintiff,  for  the  tract. 

'•!h,b,?rr«,u,'.;'r'.  uf  land  called   The  Discovery,  the  land  mentioned  in  the 

Tr'ihr  uin  or  j.  declaration,  and  fir  which  this  suit   is   brought,  dated   the 

tt»tii£  tTfawV.  C5th  day  of  June   1?.(K),   and  granted  in  pursuance  of  a 

•maBritain  it  special  iniffunl  of  cychcai,  obtained  by  Norwood  out  of  the 

md  office,  on  t!i?  '2Jth  of  October  170.1.  to   resurvev   and 

f  •  .  i    i    »  > 

a  tract  ofland  called  ftrown's  adventure,  ori<;inallv, 

•  - 

n  the  10th  of  November  •:•.'/'  ,     ,//-,/. 

•  »ii- 

Jl"^"  For  1000  acres,  who  is  stated  to  have  died   sei/.  -d   thereof 

ruf  ft  ^ri'i*  to  him 
tar  Ike  land     «ur 

•1i»t  wttrmt.  cmme   within  th»    prori.ioui   of  ihr  8th   tertian   of  the  met  of  Ntvem'ter 

tmutt  rr«n(  i«  v.il'nl  to  KB*  the  '.  •  in.:  p»iJ  mar-  than  two  Uiirdi 

•  t.-rr  wn  no 
.-tirri-    i.i  Hi       ...  i    l»y    rirtur  of 

I.anrf  li>h  •  .:i,  may  \t*  gr  i  •  l«*r  «n  «c}t«it  warrant. 

•Hehmebemt  grtnl  will  opente  by  rviaiion  to  •«  to  give  title  from  the  date  of  the  warrint  of  (*• 
rbnt. 

TW  t-li  tfiton  «r  t  1731,  r  '..  21,  <~cured  the  land  M  eiclrtktcd  to  the  par'y,  OR 

hH  lM}tnf  ttro  ihinl«  I 

Th*«t«*r,  •'  .  !>oM",»i<in  ofall  BritiiH   property  ,  .  niti    ol  ili» 

Vo  /.  .n  tiatc  uo  ihe  19th  of  Norember  17)4.   il.r  ti.ne  wli>  > 
trrtij  . 

Wfcrrr  r>-rtii:i  fi.-;«  *'in'.'  .  i  !••  in   KVi   VM    .>'i.fi'   I 

mo,  the  '!>>.  •  in  puwewion  <>l  '  tin- 


.,.:.-.'•,.,    ;;.•  .....       '.  M  EttMf       .1    .1    \     .  '.il     .!    I'r-     •  .  —  -  :  •••     1,1  i-i    v.  l 

nn.  m'  ji  rt  to  in  .    .  «.n.  .• 

n«)  r  -T<lc1,  tniT  br  road  i  i  rv 

i  •  le  had  been  pei  ice  '  .  ..-    brcn  pm- 

'        •         •      !     I'         '      |J        ,         ..     ' 


'•..•'. 

,-  UK  MOM  ••<>r  •  *-iccu>  < 


OF  MARYLAND.  97 

intestate,  and  without  heirs.  In  pursuance  of  which  war-  1807. 
rant  the  tract  was  (bund  to  contain,  clear  of  elder  surveys, 
the  quantity  of  494  and  an  half  acres,  to  which  was  added 
26  acres  of  vacant  land,  and  Norwood,  having  paid  the 
treasurer  the  sum  of  £578  18  4,  being  the  purchase  money 
due  for  the  escheat  land,  and  £4  17  6,  being  the  composi- 
tion due  for  the  vacant  land  added,  the  state  granted  to 
him  the  land,  resurveyed  as  aforesaid,  with  the  vacancy 
added,  and  called  T/i€  Discovery,  agreeably  to  the  certi- 
ficate of  survey  thereof  returned  into  the  land  office,  bear- 
ing date  the  25th  of  April  1796.  The  plaintiff  also  offered 
in  evidence,  that  The  Discovery  is  included  within  the 
lines  of  the  patent  for  Brown's  Adventure.  The  defen- 
dant then  offered  in  evidence,  that  the  great  grandson,  and 
heir  at  law  of  Thomas  Brown,  the  first  patentee,  and 
others  his  descendants,  are  alive  at  this  time  in  this  state. 
The  plaintiff  then  read  in  evidence  an  office  copy  of  a  deed 
from  Thomas  Brown,  the  patentee,  to  John  Gadsby,  bear- 
ing date  the  2d  of  May  1700,  for  the  land  called  Brown's 
Adventure,  purporting  to  be  sealed  and  delivered  by  Brown, 
in  the  presence  of  Cha.  Carroll  and  TJios.  Bland,  and  hav- 
ing the  following  indorsements:  May  4th,  1699.  Then  re- 
ceived of  the  within  named  John  Gadsby,  the  sum  of  two 
pounds  sterling,  being  for  the  fine  due  the  right  honourable 
the  Lord  Proprietary,  upon  the  alienation  of  the  land  with- 
in mentioned.  As  witness  my  hand. 

Cha.  Carroll. 

''Memorandum.  That  the  date  of  this  was  originally 
according  to  the  date  of  the  above  receipt,  but  aliened  by 
consent  of  the  provincial  court  and  parties,  to  bring  it 
within  the  act  of  assembly. 

f'/r.  Toy  lard. 

"Memorandum.  This  day,  to  wit,  the  tenth  day  of 
October,  in  the  twelfth  year  of  his  Majesty's  Reign,  £c. 
Anno  Dom.  1700,  came  into  the  provincial  court  the  with- 
in named  Thomas  Brown,  and  Kath  his  wife,  and  the 
said  Kath  being  secretly  examined  according  to  law,  they 
did  acknowledge  the  land  and  premises  within  mentioned 
to  the  within  named  John  Gadsby,  to  be  his  right  as  of 
their  gift,  according  to  the  act  of  assembly  in  that  case 
made  and  provided.  Taken  and  acknowledged  in  court. 

"FT.  Tai/lard,  C\]i.'- 


VOL.     IT. 


98 


CASES  IN  THK  I'urUT  OK  AITKAL9 


180,'.  The  defendant  then  produced  the  record  book,   cent 

ing  the  >.iid  deed,  \\ith  its  >everal  indorsements,  :ind  |  : 
ed  the  opinion  of  the  court,  and  their  direetion   to   the  ju 
ry,    that   if    tliey    were    of  opinion   that   the    indorsement- 
were  made  at  the  request  of  John  (ratlybi/,  tin-    grantee  in 
deed  named,   and   \\ith    his    prixity   and   con-ent,    and 
that  the  deed,  with  the  M-x.-ral  indm  ••enu-nt»,  \\a-  recorded 
for  his  IxMiefit,  and  with  his  assent,  that    then  the   indi<> 
menu  on  the  deed  by  the   plaintiff'  produced,   are   com 
peteHt  to  be  read  in  e\idenre   (<»  support  the.  farts  therein 
contained,  against  the  title  of  Gailyby,  to  the  land  in  the 
deed  mentioned. 

I'nxsv,  Ch.  J.  (a.)  The  court  arc  of  opinion,  that  the 
memorandum  on  the  deed  from  Thomas  Jiron-n  to  John 
Gudslti/i  endorsed,  to  wit  —  "Memorandum.  That  the 
date  of  this  xvas  originally  according  to  the  date  of  the 
above  receipt,  but  aliened  by  consent  of  the  provincial 
court  ami  parties,  to  briivj;  it  within  the  act  of  a-«-emblv. 
II'.  7'////</r<f  '  —  is  not  evidence^  IxMt;^;  an  act  done  bv  T<ti/- 
/.•//•(/  without  authority,  and  that  the  (Ved  is  valid  and  op.- 
i-ative  in  law  to  transfer  the  land  to  (iudsby. 

^  :n.c.,  J.  observed,  that  when  lie  sat  alone  at  the  trial 
of  this  case  at  the  last  term,  he  considered  the  memoran- 
dum as  having  been  made  by  an  officer  having  authority  to 
make  it;  but  since,  upon  reflection,  he  finds  that  he  was 
wronj*  in  the  opinion  which  he  gave.  He  concurs  with  the 
rourt  in  the  opinion  given,  that  it  was  an  act  done  by  7</// 
lurd  without  any  authority.  The  defendant  exrepted. 

•      ^  Tl;e  Defendant   then   ottered   to  road    in  evidence  a 
i"  co»in'  ;ied  h°m  tllis  court  on  the  l^th  of  Nov.-m 

ii  i,,  ,.,.)   ,.,.,.,.,;„  ,lt.,M1,ition,    taken    thrivimder,   and 

returned  to  ihU  rourt   on  tii-^    H)«h  of  April   1804.      Il    ;ip 
.•  the  defendant  had,  at  May  term    1KO1,  <ibtaineu 
a  coiumi»ion  to  I^ondon   for  the  purpose  of  takin:; 
mony,  and  as  the  cause  was  then    -tandin^   for  trial,   thr 
.  ommissiiMi  vns  granted,  x-.itli  a  pnixiso,  that  if  it  was  not 
returned  at  the  ne\t  term    it  would  he  no  cau^e   of  conti- 
nuance at  that  term  on  the  part  of  the  defendant.     At  <>i 

(•)  Dont,  J.  concurred. 


OF  MARYLAND.  99 

tober  term  1801,  the  defendant  filed  interrogatories,  and  1807. 
took  out  duplicate  commissions.  At  May  term  1802,  the 
commission  and  depositions  were  returned,  and  the  plain- 
tiff obtained  a  continuance  of  the  cause,  and  also  a  com- 
mission to  London  upon  the  same  terms,  that  if  it  was  not 
returned  at  the  next  term,  it  would  be  no  cause  of  conti- 
nuance, &c.  At  October  term  J 802,  the  defendant  had 
leave  to  renew  his  commission  upon,  the  same  terms  as 
were  originally  granted,  and  he  filed  additional  interroga- 
tories, and  issued  the  commission,  and  sent  a  copy  of  his 
original  and  additional  interrogatories  with  the  commissi- 
on, which  was  returned,  with  depositions,  as  before  stated, 
and  were  now  offered  to  be  read,  but  which  were,  objected 
to  by  the  plaintiff's  counsel. 

CHASE,  Ch.  J.  It  appears  that  two  terms  have  inter- 
vened since  the  commission  was  taken  out  by  the  defen- 
dant, and  the  plaintiff  had  sufficient  time  to  send  forward 
his  interrogatories.  The  oath  which  the  commissioners 
take,  shows  that  they  may  receive  additional  interrogato- 
ries at  any  time  before  the  commission  is  closed.  In  exe- 
cuting foreign  commissions,  notice  is  not  necessary;  but 
time  should  be  given,  that  the  opposite  party  might  exhibit 
cross  interrogatories.  The  court  are  of  opinion,  that  the 
testimony  +aken  under  the  commission  may  be  read  in  evi- 
dence to  the  jury. 

3.    The   second   bill  of  exceptions.     The  plaintiff  then    An  escheat  war. 

runt  could  not  le- 

pioduced  in  evidence  a  deed  from  John  Gadsby  to  John^^'^^e.^^ 
Barker,  dated  the  10th  of  July  1701,  for  130  acres,  part  !•£".*£' i^'E 
of  Brown^s  Advtnlnre,  describing  the  part  by  courses  and  u,e'atiine'Y£fn  the 
distances,  and  calling  the  same  Markers  Inheritance.  «,nn;  but  T°grEi 
Also  a  deed  from  Gadaby  to  Aaron  Rawlings,  for  all  Aev/y^andM- SM 
residue  of  Brown'' s  Adventure,  not  conveyed  to  Barker,  w?/ii\i)niherpn!vi- 
dated  the  2d  of  October  1703.  Also  a  deed  of  Btortttce  Number  "rsuA. 

20  s  U 

from  Aaron  Rowlings  to  Jonathan  Scarlh,  dated  the  13th 
of  May  1706,  for  all  the  land  included  in  the  patent  of 
Broivn"s  Adventure,  except  the  130  acres  conveyed  to 
Barker,  which  deed  of  mortgage  was  to  be  void,  &c.  on 
payment  of  £800  sterling  money,  with  interest,  on  the 
13th  of  May  1709.  He  then  offered  evidence,  that  Barker 
and  Scarth  died  before  the  year  1795,  without  heirs.  He 
then  offered  in  evidence  an  escheat  warrant,  to  affect  by 
escheat  the  whole  of  Brown's  Adventi'.re,  for  the  want  of 


100  CASES  IN  THE  COURT  OK  APPEALS 

1807.       the    heirs  of  Thomas  Brown,  or  "be  it  escheat  by  the 

l—"v— '      means  aforesaid,  or  by  anv  other  wav  or  means  whatsoe- 
owiu^i  •  * 

**  ver,"  granted  to  the  lessor  of  the  plaintiff  on  the  28th  ot 

October  1795;  also  a  certificate  upon  that  warrant,  return 
ed  to  the  land  office  on  the  2(.Mh  of  >i-|>teinl)ei  1796;  also 
a  caveat  against  a  grant's  i^uin;;  on  the  certificate  by  Ed 
tcard  Dorsey,  on  the  26th  of  August  17'J»5;  aUo  a  second 
caveat  entered  against  a  grant's  inning thereon  by  ffilllani 
Hammond  on  behalf  of  The  Baltimore  Company,  on  the 
10th  of  January  1797;  also  an  order  of  the  judge  of  the 
land  office  dismissing  the  caveat  of  Hammond  on  the  30th 
: uber  1797;  also  an  order  of  the  judge  of  the  land 
office  permitting  the  caveat  of  Dorsey  to  be  withdrawn, 
and  that  the  same  was  withdrawn  on  the  24th  of  June 
1800;  and  also  a  patent  issued  upon  the  certificate  to  the 
lessor  of  the  plaintiff  for  the  land  therein  mentioned  called 
The  Discovery,  bearing  date  the  25th  of  June  1800.  He 
then  offered  evidence,  that  Brown's  Adventure  and  Th,t 
Discovery  are  truly  located  upon  the  plots  as  the  plaintiff 
hath  thereon  located  them.  The  defendant  then  offered 
in  evidence,  that  the  descendants  and  heirs  at  law  of 
Brown,  the  original  patentee,  were  at  this  time  in  full  life 
in  this  state;  and  that  Scarth,  the  mortgagee  in  the  deed 
from  Rowiings,  died  in  Great  Britain,  having  alwa 
sided  there,  leaving  issue  an  only  son  and  heir  at  law,  who 
during  his  life  always  lived,  and  died  in  G.  B.  and  left  is- 
:ii  only  child  his  daughter  and  heir  at  law,  who  always 
M-Mi'.ed  in  (i.  B.  and  married  Francis  Moorr;  that  she  and 
Moore  her  husband,  having  always  during  their  live-  i, 
sided  in  G.  B.  aftei  wards  died,  lca\  M^oie  of 

<i.  l>.  their  only  son  and  heir  at  law,  who  is  now  in   full 
life  residing  in  G.  B.  where  he  always  ha.-  i  Bri- 

tish subject.  The  defendant  then  prayed  the  court  to  di- 
rect the  jury,  that  the  warrant  of  escheat  which  issued  to 
the  lessor  of  the  plaintiff,  issued  without  authority  of  law, 
<hc  property  Inrin^  in  the  state  of  Maryland  as  confiscated 
property,  and  not  liable  to  be  affected  by  a  warrant  of  es 
cheat. 

CHASE,  Ch.  l.(a.)  The  court  are  of  opinion,  that  it  tl.< 
heirs  of  \>-urth  were  living  in  Great  Britain  &t  the  passage 
of  the  acts  of  October  1780,  ch.  45,  ch.  49,  and  ch.  51,  that 

(a)  Dont,  J.  concurred.  Srigg,  J.  gave  no  opinion. 


OF  MARYLAND.  101 

the  warrant  of  escheat  which  issued  to  the  lessor  of  the        1 807. 
plaintiff,  issued  without  authority  of  law;  but  that  a  patent 
which  issued  on  such  warrant  came  within  the  provision  of 
the  act  of  November  1781,  ch.  20,  section  8. 

4.  The  second  bill  of  exceptions  in  continuation.     The    A  PTnnt  °r  'a.n;' 

i     as  escheat,  which 

defendant  then  offered  in  evidence  the  valuation  of  the  Jj'"^^'''.''^'"^!'^ 
land  so  escheated  by  the  lessor  of  the  plaintiff,  and  the  gj*1*^^ 
sum  by  him  paid  into  the  treasury  for  the  land  on  the  24th  J^,,  t^hirXTrf 
of  December  1799,  arid  that  the  sum  so  paid  was  only  ttAO'^^t^aA^ 
thirds  of  the  appraised  value  of  the  land  so  escheated. 
And  he  then  prayed  the  opinion  of  the  court,  and  their  di- 
rection to  the  jury,  that  if  they  were  of  opinion  that  the 
lessor  of  the  plaintiff  had  only  paid  two-thirds  of  the  ap- 
praised value  of  the  land  so  escheated,  that  then  he  could 
not  entitle  himself  to  the  benefit  of  the  warranty  contain- 
ed in  the  act  of  November  1781,  ch.  20,  s.  8. 

CHASE,  Ch.  3. (a.)  The  court  are  of  opinion,  that  if  the 
jury  believe  the  facts  stated,  that  then  the  patent  was  good, 
valid  and  operative  in  law,  to  pass  the  land  to  the  lessor  of 
the  plaintiff,  and  his  heirs,  notwithstanding  he  had  not  paid 
more  than  two-thirds  of  the  appraised  value,  the  court  con- 
sidering his  case  as  coining  fully  within  the  provision  of 
the  eighth  section  of  the  act  of  November  1781,  ch.  20, 
and  that  two-thirds  of  the  value  of  the  land  was  as  much 
as  he  was  liable  to  pay.  The  defendant  excepted  to  this 
last  opinion,  and  to  so  much  of  the  preceding  opinion  as 
declares  the  patent  to  come  within  the  provisions  of  the 
8th  section  of  the  act  of  November  1781,  ch.  20. 

5.  The   third  bill  of  exceptions.     The   defendant  then    T1;ft  >««•»'  »•''« 

.  1-11  •  t0  lai"'s'l-0'1|i1  !'>«- 

read  in   evidence  a  record  of  the  late  provincial  court   of <1'1  U1"'l>1  a"  at- 

tiicumriit,  cannot 

Maryland,  of  a  judgment  for  attachment,  recovered  in  that  be  "^"i'"1  y;-<'>- 

•'  J        e  out    a  fieri  f tscins 

court  at  April  term  1732,  by  Littleton  Waters  against  Jo-  iTn^o^LLu! 
nathan  Scarth,  for  £397  9  6,  sterling  money,  and  costs; ej 
also  a  record  of  that  court  of  a  writ  of  attachment  if^ued 
on  that  judgment  by  Waters,    on  the   15th  of  November 
1736,  against  the  goods,   chattels  and  credits,  of  8atrth$ 
and  a  return  made  on  that  writ  by  the  sheriff  of  Baltimore 
county,  to  whom  it  was  directed,  certifying  that  he  had  at- 
tached, as  the  goods  and  chattels  of  Scarth,  a  tract  of  land 
called  Brown's  Adventure,    containing    870  acres,   and 

(ft)  Done,  J.  concurred.     Sprigg,  J.  gave  no  opinion. 


10»  IN  i  MKco;  IITOF  AIMSK  LLa 

180r.         \\l.iih    ho    had    rau-ed    tn    In-    ;']>]!  ai-rd,    i\  >i    .ij, 

•Mien  i>r  ili'-  >aid  hind,  anounting  to  £304  in  < 
•noncy;  upon  \\liitli  return  judgment  of  romlctuuation 
in  the  usual  form,  \\as  rendered  at  May  tern  1."  V.      Pihei 

da  of  attachments  and  condemnation  -  mdr;. 

irarnMiee-.  and  otliei  lamU  to  the  amount  of  L  -"'JS  1'2  (i 
Meil'm:;-.  v.  eie  oflort-d  in  rvidrnrc.  Tlio  jilaintiir,  to  »lm\s 
that  tho  land,  part  of  Jifcu-n'n  .idrciitttrc,  alit-ctru  by  tin- 
aiiailiincnt,  \\as  the  386  acri-s.  liiatrd  by  him  upm  tin: 
|  lot.-,  as  the  land,  part  of  Jiromi's  rfdrriilurr,  in  th. 

"ii  of  The  Hdllhnorc  Coti>pcn)>>,  read  iu  i^idcncf  tlu- 
late  Ij«nl  Proprietary'*  old  rent  roll  (a  .  kept  aiui  ri  main- 
ing  in  the  land  oflicr,  >ho\\in^  tl.at  l\u*  -  in  |;osse8- 

>ion  of  870  acn%s,    and  lltirkir  \\a->    in 

-.  of  that  land;  also  the  Proprietary's  fast  rent  ml/  l>  . 
s!io\\ing  that   Scnrlh  was  in  possession  of  419  acres,   and 
C'liar/c*  Carroll,  Exijvirt^  $•  Coinjxmi/,   (conimonly    r.illi-d 
T.'n   ItaltiiHorf  CotnpanyJ  were  in  pii--r*.-inn  of  .::-.(. 
of  that  land:  also  the  Proprietary'1*  debt  boo/,  for  th< 
1734,  \\ltic  li  i^  tl-.e  oldest  debt   book  known  of,   or  can    b<- 
found,  wherein  it  appears,  tliat    The  lialtiiiton  > 
-taml  charged  wiih  quit  rents  upon  the  386  acres   of  land, 

.    >nd  no  more:  and  that  Xi-arl'i, 

in  those  debt  \.<  ai'-red  with  the  quit  n-n 

on  419  acres,  part  of  that   trail:  and    that   the  i<  >p«x  tlv. 
.;ainst  77:c  P.allhnore  Company,  and    $t",-f/i,  .in- 
continued,   in    like  manner,  upon    the    1'n-;  debt 

books,  from  the  year  17.)-$  until  the  comnu-n.  I   the 

revolution  between  (irutt  Jirilaln  and  .•inn-rico.  The  de- 
fendant then  j.:-a\i'd  the  opinion  of  the  court,  and  their  di- 
rection to  the  j'iry,  that  by  virtueof  the  jud^im  : 
inent  and  condemnatinn.  by  the  plaintilV  -i\en  in  e\i<!ei:ce, 
a  legal  estate  was  vested  in  Littleton  U'atcrs  in  the  tract  of 
land  called  liroicn'n 


C'H\M,  C'h.  J.     The  court  are  of  opinion,   that    /.ittl, 
ton  H'attrs  did  not   acquire,  a  legal  otate  in  /}n>ini\->    li! 

(a)  Made  about  the  year  1708    it  is  supposed,   but  there  i*  no 
date  to  it. 

(b)  Made  about  the  year    17CO  i:  is  supposed,  but  there  is  no 
date  to  it. 


OF  MARYLAND.  103 

venture  fry  virtue  of  the  judgment,  attachment  and  con-        1807. 
Uemnation.     The  defendant  excepted. 

6.  Tlie  fourth  bill  of  exceptions.  The  defendant  then 
read  in  evidence  an  act  of  assembly  of  November  session  The  right  of  an 
1797,  ch.  119,  entitled,  "an  act  to  relinquish  the  right  of  hLCbie"wrw!iftS«l. 
this  state  to  the  lands  therein  referred  to,  "and  prayed  thfci£%o**ini»g  hi* 
opinion  of  the  coKrt,  and  their  'direction  to  the  jury,  that  waived  by  tilr 
bv  virtue  of  that  'act.  the  right  of  the  state  was  so  farl^tUn'oYW^ct 

of     1797,    ch    11«; 

vested  in  the  persons  possessing  JJrown's  Jtdventure,  un-  «mi  ihe  errant  to 

1  p  him    operate*     to 

•der   the   condemnation  aforesaid,  that   the  lessor  of  the  transfer  the  statis 

'  rf.Miicrest      in.     tuii 

plaintiff  could  not  in  virtue  of  his   warrant,  certificate  o*  laud 
survey  and  patent,  have  any  right  or  title  to  the  said  land, 
•nr  if  any,  then  no  more  than  the  proportion  or  compensa- 
tion to  which  a  discoverer  of  confiscated  property  is  en- 


CHAST,,  Ch.  J.  The  court*  are  of  opinion',  that  the 
right  of  the  lessor  of  the  plaintiff  to  Brown's  .ftdventKre, 
attached  on  his  obtaining  his  warrant  of  escheat,  and  that 
his  right  was  saved  and  protected  by  the  proviso  in  the 
second  section  of  the  act  of  November  session  1797,  ch. 
119.  And  the  court  are  of  opinion,  that  the  grant  to  the 
lessor  of  die  plaintiff  operates  to  transfer  to  him  the  in- 
terest the  state  had  in  the  land  called  The,  Discovery,  from 
the  time  of  the  obtentiou  of  his  warrant  of  escheat.  The 
defendant  excepted. 

7.  The  fifth  bill  of  exceptions.  The  defendant  then  17JfieeJftsJ|f  ^°8V 
prayed  the  opinion  of  the  court,  and  their  direction  to  the  *^£  l°,j  nla^,J 
jury,  that  if  the  warrant  of  escheat,  which  issued  to  the^'^^'i'f';',; 
lessor  of  the  plaintiff,  issued  without  authority  of  law,  h",nfip"$£  t°* 
that  then  the  -warranty  contained  in  the  act  of  November  hi^Vnd  tbeKnwt 
3781,  ch.  20,  s.  8,  did  riot  operate  to  give  title  to  the  les-  trim  operwJ  by 

c    ,1          i    •    x'ii*  i     jt  -  i      •  relation     to     t!>o 

sor  ot  ti>e  plaintin;  and  that  there  can  be  no  relation  to  a  date  of  «he  «m- 

....  .  .  I'uiit  of  escheat 

warrant  which  issues  without  authority  of  law,  or  to  a 
certificate  made  in  pursuance  of  such  warrant. 

CHASE,  Ch.  J.  The  court  arc  of  opinion,  that  the  act 
/>f  November  session  1781,  ch.  20,  s.  8,  did  secure  to  the 
lessor  of  the  plaintiff  the  land  so  by  him  escheated,  on  his 
paying  two-thirds  of  the  value  of  the  land,  being  what  he 
was  liable  to  pay  for  the  same  as  confiscated  Britiah  pro- 
yj  and  that  the  grant  obtained  by  him  did  operate  to 


tot  CASE.?  IN  THK  COURT  OF  APPEALS 

1S07.       pass  the  land  to  him  by  relation,  from  the  date  of  the  v, 
' — «• — '       i  ant.     The  defen«lant  excepted. 

NOT"O.*I  8-  Th*  aixth  bM  °f  t^tytiom.      The  defendant  then 

prayed  the  opinion   of  (ho  court,  and  their  direction  to  the 
. 
"r'«-«""'- jurv,  that  if  Broton*»  .Idvcnture  belonged  to  a  Brititn 

cwmiuiwMrn  « .•  subject  at  the  time  of  passing  the  act  confiscating    Britix/i 

in       •  »•»»   •-  M*.II       ii  <J 

,'niperty  in  thi-  i  if  no  actual  possession  had  been 

•ken  thereof  by  the  state,  or    it-  .  -id   no   sale  or 

••!••  thrreuf,  by  the  s'ate,  to  any    pen-on,   at 

any  time  before  the  treaty  between  the  Culled  Hairs  and 

'  Hrltnin.   dated  the    ICUh  of  November   1T94,   took 

effect,  that  the  lessor   of  the  phintifl*  could  make  no  title 

-  warrant,  certificate  of  survey  and  patent. 

t'h.  J.  The  court  are  of  opinion,  that  the  stale, 
by  its  commissioners,  was  in  possession  of  all  British  pro 
ithin  the  limits  thereof,  under  and  by  virtue  of  the 
"ii,  October  1780.  r.ft.  45,   and   the    act  of 
th<  -ion  r/j.  -49,  to  appoint  commissioners.  «Lvc.  and 

tiiat  the  possession  of  the  land  was  in  the  state  at  the  time 
the  lessor  of  the  plaintiff  obtained  his  escheat  warrant;  and 
that  no  Hritish  subject  could  hold  land  in  this  state  on  the 
19th  of  November  1794,  the  time  when  the  treaty  was  en- 
tered into  between  Great  Britain  and  the  Cm  ted  Slates  of 
America.  The  defendant  excepted. 

wh«*  «  mott.      Q.   The  seventh  bill  of  exceptions.     The  plaintiff  then  of 

f- •»»•  »mt  «-x-  9 

cr^Br°ciV\vi'.o  k''ct'  'n  evidence,  that  Scarth  died   before  the  year  1795, 

v  ithout  heirs,  and  that  Barker  left  heirs  now  living  in  thi- 

CUP.  -   ite.    AUo  an    escheat  warrant,  to  a  fleet  by   f -rheat  the 

»mn7^-  whole  of  Brour's  jStlventurc,  except  the  150  acres  con- 

7iThi«  ^"""o  v»-yed  <o  fiarkrr,  granted  to  the  lessor  of  the  plaintiff,  &r. 

f«-  The  defendant  then  rfierfd  in  evidence,  that  the  lineal  il 

^  our   of  a    ;  •  .    .  _     _  .  ... 

cendants,  and  heirs  at  law  or  arotm,  the  original  pat  en - 
fn^'i/cm^iitV  U  it  ti.is  time  living  in  this  statc^  Alsct,  that  Jfau- 

ml"  r        ill*1 

.   the   grantee,   died   leaving  lu-irs,  and  tint  the  heirs 

thr  nwrt)r*r-  I  *•'• 

*2*  »"tl%rd  '"••  ajid  desccii  -  arc  at  this  time  living  in  this 

••W  UH:  }»-ar    l.rO 

•  ,   that    the   (!••-  and    heirs  at    law  of 

AVv/.-//i,  are  at  this  time  alive  and  residing  in    Great  Brl 
tain;  and  that  Sccrfh  was  a  merchant  in  the  year    170G, 

•  •the  then  province  (now  state.) 
and   that  Hearth,  and  his  descendants  and 

•>ar  1 790,  in  succession, 
i  ally  resided  in  Great  Jirilain  to  this  time,  being  British 


OF  MARYLAND.  105 

subjects,  and  never  were  in  this  state.     Also  the  will   of       180r. 

Jtawlings,  dated  the  25th  of  March   1741,  thereby  de- 

vising that  his  lands,  called  Brown?  s  Adventure  and  Young's 

Lot,  be  equally  divided  between  his  sons  and  daughters. 

Also  that  f  raters   is  dead,   and  that  his   descendants   and 

heirs  are  now  living   in  this  state.     Also  that  The  Balti- 

more Company,  under  whom  the  defendant   claims,    have. 

been  for  fifty  years  last  past  in  the  actual  possession  and 

user  of  the  whole  of  Brown's  Adventure,    by  clearing  and 

cutting  the  wood  off  the  land   for  their  iron    works,    anil 

claiming   the  land;  and  that  there   has  been  no  actual   or 

mixed  possession  of  any  part  of  the  land  by  Scarlh,  or  by 

any  person  claiming  under  him,  or  by  any  person  claiming 

adverse  to  The  Baltimore  Company.     The  defendant  then 

prayed  the  opinion  of  the  court,  and  their  direction  to  the 

jury,  that  if  they  find  the  facts  stated  by  the  defendant  to 

be  true,  and  that  no  payment  of  principal  or  interest  due 

on  the  mortgage  from  Rawlings  to  Scarth  was  at  any  time 

paid,  made  or  clone,  on  or  after  the  13th  of  May  1709,  that 

then  the  jury  may  and  ought  to  presume  the  mortgage  sa- 

tisfied before  the  year  17?0,    and  that  the   plaiqtiff  is  not 

entitled  to  recover. 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  the  facts 
stated  will  not  warrant  the  jury  in  presuming  the  mortgage 
was  satisfied  before  the  year  1780,  inasmuch  as  Scarth  was 
continually  a  resident  of  Great  Britain,  and  although  he 
never  entered  into  possession  of  the  land;  yet  a  possessi- 
on of  The  Baltimore  Company  of  50  years  will  not  autho- 
rise the  presumption  of  the  payment  of  the  mortgage  mo- 
ney, as  the  defendant  has  not  deduced  or  shown  any  title 
in  them  from  Rawlings;  and  therefore  the  court  refuse  to 
give  the  direction  prayed.  The  defendant  excepted. 

10.  The  eighth  bill  of-  exceptions.     The  defendant  then    ,Lan*  ^v".^ 

•I  eel     (o   a     BritUt 

prayed  the  opinion  and  direction  of  the  court  to  the  jury,  {S^o'UnfrSwiSon 
that  if  the  facts  are  found  true,  as  stated  by  the  defendant,^  "j^"1^; 
that  then  the  acts  of  confiscation,  of  October  1780,  ch.  45,  ffif^fSSE 
and  ch.  49,  vested  no  beneficial  interest  in  this  state  in  the  {Si^iJ^and 
lands  mentioned  in  the  mortgage  from  Iitm-Iings  to  Scarth,  canuoV'uVevaTA'n 


but  that  the  same,  if  it  vested  in  this  state  under  the  actof  su 
confiscation,  was  liable  to  the  equity  of  redemption  in  the 
heirs  of  Rawlings,  the  mortgagor,  and  that  by  operation  of 
the  British  treatv,  so  far  as  the  mortgagee  could  claim  an 

VOL.    II.  14 


icm  CA-K-  IN  TH;  !•<»!•  viv:-;AL> 

1807.  in  tin-  innrf  -.raged  land-. 

confiscation  by  that  tivi".  .  :ivl  loii-'quenlly  the  plain  tifl' 
is  not  entitled  to  recover. 

Ch.  J.     The  court   are  of  opinion,  that  on    the 
expiration  of  the  time  limited  in  the  n.  i  •:   tin-  pay- 

ment of  the  money,  a  complete  !r  of  inheritance 

ii  the  mortgagee,  liable  to  confiscation,  and  wa-» 
vested  in  the  state  in  virtue  of  the  act  of  confiscation  of 
October  1780,  ch.  45,  and  the  act  of  tin-  -ion,  c/i. 

4(>,  to  appoint  commissioner?,  kc.  subject  to  the  right  ol 
redemption  in  the  mortgagor,  and  hi>  hcir>:  and  that  the 
British  treaty  cannot  operate  to  afiect  the  plaintifTs  right 
to  recover  in  this  ejectment.  The  defendant  excepted. 

11.   The  defendant  then  offered  to  read  in  evidence  au 

* 

^d\  original  lease  and  release  from  Jtaters  to  Benjamin  Task- 
w  en.  ^  anj  otjierS)  (The  Baltimore  C^in/id)!!/.)  which  are  not 
to  be  found  upon  any  of  the  records  of  the  suite,  and  which 
are  dated,  the  lease  on  the  20th,  and  the  release  on  the  21st 
of  June  1738,  reciting  the  judgment   obtained    b\  Haters, 
in  the  provincial  court,  for  the  condemnation   of  /lYf 
Adventure,  mortgaged  by  liau'lingn  to  Scarth   the  13th  of 
Mav  ITOG,  as  the  effects  of  Scarth  >  <S:c.    and  «  o!;\cying  to 
Ta»ktry  and  others,  so  much  and  such  part  of  Jiron-r' 
venture  as  should,  according  to  the  valuation,  upon  oath,  re- 
turned into  the  provincial  court,  amount  tojL'145   1   ;l-tri 
money,  &.c.     Neither  of  which  deeds  appear   toha\i 
been  acknowledged.     The  plaiatitf  objected  to  the  reatliru 
of  the  deeds  in  evidence. 

(         •  .  (        J.     The  court  are  of  opinion,  that  the  lta-t- 
and  release,  being  ancient  deeds,   not    i  to  be  re- 

corded, mav  be  read    in  evidence  to  the  jury.     TI,«-\    \ 
accordingly  read  to  the  jury. 

mn>-       \\    The  ninth   bill  of  cxcintlons.     The  defendant  then 

r*HM   ; 

i!."r'rCtrd!l)ra.V1'^  '  '"'  "  I  ''  "'""I  °'%  ']l('  t(lll!'N  :'»d  their  direction  to  tlie 
wrns  Jur.v»  tnat  '*  tlie>  fui(1  lll°  facts  true>  as  stated   by  the  de- 
,  that  then  the  deeds  of  lease  and  release  from  It'a 


ters  to  Tusker  and  others,  conveyed  a  legal  title  in  the 
lands  therein  mentioned;  and  that  if  a  legal  title  did  not 
pass,  that  then  the  jury  may  and  ought  to  presume  a  title 
in  7'askcr  and  others,  to  the  whole  of  an  undivided  38G 


OF  MARYLAND.  107 

acres  of  land,  being  an  undivided  part  of  the  870  acres  of       1807. 
land,  mortgaged  to  Scarify  called  Broiorfs  Adventure. 

CHASE,  Ch.  J.  The  evidence  will  not  warrant  the  court 
t'o  direct  the  jury  to  presume  that  Scarth  perfected  the  ti- 
tle of  the  defendant,  deeds  having  been  produced  showing 
that  a  defective  title  had  been  transferred.  Until  all  the 
money  was  paid,  Scarth  was  not  bound  to  convey  or  di- 
minish the  security  he  had  acquired  for  the  whole  debt  due 
to  him.  The  court  refuse  to  give  the  opinion  arid  directi- 
on as  prayed.  The  defendant  excepted. 

13.   The  tenth  bill  of  exceptions.     The  defendant  then  ^^J^ 
prayed  the  opinion  of  the  court,  and  their  direction  to  the  ^chJa?  sranT'dCi 
jury,  that  as  to  all  that  part  of  Brown's  Adventure,  con-  TiK^^rl 
tained  in  the  deeds  from  Waters  to  Tanker  and  others,  un-  ciaim'£j-dtf^nipart 
der  whom  the  defendant  claims,  the  patent  granted  to  the  defcetfr*  title 
lessor  of  the  plaintiff  doth  not  give  him  a  title  thereto,  or 
enable  the  plaintiff  to  recover  the  same. 

CHASE,  Ch.  J.  The  court  refuse  to  give  the  opinion  and 
direction  prayed. 

The  defendant  excepted.  The  verdict  and  judgment  be 
ing  for  the  plaintiff,  the  defendant  appealed  to  this  court, 
where  the  cause  was  argued  at  December  term  1806, 
before  TILGHMAN,  BUCHANAN,  NICHOLSON,  and  GANTT,  J. 

Martin,  Key  and  Harper,  for  the  appellant,  in  their  ar- 
guments on  the  first  bill  of  exceptions,  contended,  that 
every  deed,  to  give  it  validity,  must  contain,  at  common 
law,  1.  Indentation.  2.  Sealing.  5.  Delivery;  and  3su- 
perinduced  by  the  act  of  1699,  ch.  42,  two  other  requisites, 
1.  It  must  be  acknowledged;  and  2.  It  must  be  enrolled 
within  twelve  months  from  its  date.  They  also  contend- 
ed, 1.  That  the  deed  from  Brown  to  Gadsby  appeared  to 
have  b^en  executed  in  pais  before  Carroll  and  Bland,  an:l 
sealed  and  delivered  in  their  presence.  2.  That  the 
receipt  of  the  alienation  fine,  as  endorsed  on  the  deed, 
stated  that  it  was  paid  to  Carroll  on  the  4th  of  May  1699. 
3.  That  there  was  strong  evidence  of  the  execution  of  the 
deed  on  that  day,  because  Carroll,  who  gave  the  receipt, 
was  a  witness  to  its  execution!  4.  That  it  was  unusual  to 
pay  the  alienation  fine  before  the  execution  of  the  deed,  as 
it  could  not  be  demanded  before  execution,  being  a  duty 
arising  on  the  actual  alienation,  and  not  before.  5.  That 


108  CASES  IN  THE  COURT  OF  APPEALS 

1807.        it  wa*  further  e-t.iMi-'ied    In  the  act    of  the   rink    nt 
*— -v— • '        court,  who  oilicially  ccrtil'ud  the  alteration  of  tin 

a  proceeiliii'i  in  court  liy  the  consent  of  the  court  and  the 
parties;  which,  \vlien  done,  admitted  the  deed  to  he  record- 
ed, (i.  That  it  \\as  tlie  official  act  of  the  clerk  could  not 
be  doubted,  became  H  "a-  made  under  the  eye  nf  the 
court,  and  \vith  their  consent,  and  endorsed  on  the  original 
deed.  7.  That  it  was  endor-cd  at  the  request  of  the 
grantee,  for  his  benefit,  and  to  e\pl:iin  the  date  of  the  alien 
ation  fine.  8.  That  the  memorandum,  after  so  great  a 
lapse  of  time,  \\as  the  best  evidence  of  the  fact,  and  ou^ht 
therefore  to  ha\e  been  admitted  in  evidence  as  the  act  of 
the  clerk  in  OJHMI  court,  with  the  consent  of  the  court  and 
tir*  to  the  deed.  They  referred  to  Gilli.  /,.  /.'.  108. 

r*.  (;<»ni<fn»,  Cr<>.   KHz.  CrlC).      I'oyici/  r.v.  '/ 
ncr,  Ihid  800.     The  Xtutc vs.  Oilen  (a).     ll>t.^>/t'*    I.rttec 
t'».  linker,  1  Ifnrr.  &/"•'•••  ^  71.      llmlily^s  Lessee  vs.  I/nr- 
rifuian,    Ci  Harr.   $•  M'lleii.  581.      Wood  vs.  Oii'lms*   »\- 

•',,   \   Cfinirli. 

On  the  secondb\\\  of  exceptions  they  contended,  1.  That 
the  land  was  not  liable  to  escheat,  there  bein^   heirs  of 
Scarth;  and  they  referred  to  the  several  acts   of  confix  a 
tionof  October  1780,  ch.  45,  ch.  49,  and  c/i.  51.    2.  That 
this  was  not  a  case  within  the  warranty   of  the  act  of  No- 
vember 1781,  ch.  20,5.  8.       They  cited  1  /;//.-.  Com.  91. 
3.  That  the  land  \\ as    liable  to   conli«-ation,    and  the  title 
to  it  could  only    be  obtained    in  a  particular  inaniur — 1>\ 
sale  and  deed:  and  that  the  land  office   had   no   power   or 
authority  OVer confiscated  land*.      They  referred  toactsof 
HI;   1785,  ch.  GO,  eft.  88;  1788,  ch.  4'.):   1789,  ch. 
17;   1791,    ch.77,  s.  8;   17!>:,    <h.  81,*.  6;  1793,    ch.  CA-. 
.  ch.  0;   179G,  rh.  12;  1799,  ch.  80,   *.  G:  and    1800, 
.  G.     -4.  That  the  patent  was  made   without  au- 

'ccl    a      (»)  In  DIP  c*«e  of  Tl.f  Stale  vi.  Odfn,    in  the  general    court    at 

!!'«"'c.  M»y  tcrm  ls*"«  in  di:ht  otl  bond-    tl>e  defendant  pleided    nnn  est 
ii'.'i.'.  r.  ,i  i.l  I  iclum,  «nd  lh«t  the  bond  was  delivered  &>  an  arrow.  At  the  trial 
.   plaintili   ofTcred  lo  prove,  that  J.  S    was  indebted  to  the  state, 
.  almi  h«»-  »"d  'ti;i1  llie  defendant  was  indebted  lo  J.  S;  that    it  wat    agreed 
1  '"-••""I  that  J    S.  shotil;!  ;:ivo  up  to  Ihe  defendant  hi»  bond,  and  that    the 
defendant  should  execute  his  bond  to  the  *uielor  the  sum  which 
he  owed  to  J.  S — which    WAS  done.     That  the  defendant's  bond 
wa»  presented  to  the  state's  «cent,   but  which  was    refused    to  >><• 
received  in  discharge  of  the  debt  due  to  the  state    by    J  .  S,   and 
upon  which  bondth'.s  suit  was  brought  in  the  name  of  the  state 
for  the  me   of  J    S.      The  <".  ENERAI.  COURT    refused    to   direct 
the  jury  that  the  bond  was  the  deed  uf  the  defendant. 


OF  MARYLAND.  109 

tlmrity,  and  was  void.  They  cited  Kelly's  Lessee  vs.  Green-       1807. 
field,  2  Harr.  «$•  Mullen.  121. 

Owinj,'« 

()a  the  third,  fourth,  and  fifth  bills  of  exceptions,  they  Nor"00(j 
Contended,  1.  That  this  land  was  held  under  a  judgment 
of  condemnation  on  attachment.  They  referred  to  the  act 
of  1715,  ch,  40.  Stat.  5  Geo.  II.  ch.  7.  Plater's  Lessee  i-». 
Jfcpburn,  3  Harr.  <$•  M'llen.  434.  Davidson's  Lessee  vs. 
Beathi,  Ibid.  594.  The  act  of  1797,  ch.  119.  2.  That  if 
it  could  not  be  legally  held  under  that  judgment,  it  was 
embraced  by  the  releasing  act  of  1797,  ch.  119,  unless  It 
came  within  one  of  the  provisos.  3.  That  the  second 
proviso  could  not  aid  the  appellee,  for  two  reasons — 1st. 
because  Norwood  was  not  an  informer  against  confiscated 
lands;  and  2d.  because  the  rights  of  informers  extended 
not  to  the  land,  but  to  a  certain  part  of  the  price.  They 
referred  to  the  acts  of  1785,  ch.  88,  *.  3;  1788,  ch.  49,  s. 
2,-  1789,  ch.  47,  s.  20;  1790,  ch.  65;  1791,  ch.  77,  ch.  90; 
1792,  ch.  81;  1794,  ch.  40,  s.  7;  4'  1800,  ch.  62.  4.  That 
the  only  remaining  question  was,  whether  Norwood  came 
within  the  first  proviso;  that  is,  whether  at  the  time  of 
passing  this  act,  (21st  January  1798,)  he  had  a  right  in 
or  to  this  land?  They  contended  that  the  grant  to  Nor- 
wood could  have  no  relation  to  the  date  of  the  escheat 
warrant,  which  had  illegally  issued;  nor  to  the  date  of  the 
certificate  of  survey,  which  was  equally  illegal,  as  there 
could  be  no  relation  to  an  illegal  or  tortious  inception  of 
title.  They  cited  3  Cbfa,286,  29.  a.  2  Ventris,  200.  Town- 
send  vs.  A*h)  3  Jltk.  340.  Co.  Lilt.  310,  b.  3  Shep.  Mr. 
150,  151,  152.  Howard  vs.  Cromwell,  4  harr,  $•  M<-I1m. 
-325,  and  1  Harr.  fy  Johns.  115.  Peter  vs.  Mains,  4  Harr. 
iS-  M'Hen.  423.  Hammond  vs.  Norrls,  in  the  General 
Court,  (see  post.) 

On  the  sixth  and  eighth  bills  of  exceptions,  they  con- 
tended, 1.  That  the  confiscation  act  excepted  debts,  and, 
by  an  equitable  construction,  it  excepted  all  the  incidents 
to  and  securities  for  debts.  They  cited  Pow.  on  Mort.  13, 
15,  16,  178,  179.  2.  That  if  mortgages  were  affected  by 
the  act  of  confiscation,  still  the  treaty  of  peace  protected 
them,  and  operated  as  a  repeal  pro  tunto.  They  referred 
to  the  treaty  of  peace  of  3d  of  September  1783,  Art.  4, 
5,  6.  Ware  vs.  Ifyllon,  3  Dull.  199.  Clerhe  vs.  Harwood, 
Ibid  342;  and  the  treaty  of  the  19th  of  November  1794, 
Art.  9. 


(   \M-;.S  IN   THE  COURT  OF  APPEALS 

On  tin-  .trcnth  bill   of  exceptions  (hey  contended,   that 
the  nature  and  length  of  the  possession  of  the   appellant, 
and  those  under  vhom  he  claimed,  to   tin-  exclusion  of  all 
•CM***  and  there  briu^   no  demand  of  the    mm  t'.ia-e  debt, 
lent  for   the  court    to  have   directed    the  jur\  to 

'!ebt  had  been  satisfied. 

On  the   ninth  and   tenth  bii,  eptions,   they  cited 

Ifarrcn  vs.   Grceiv  TO.    112'.).  The 

•f  C'lintdo.-:.  2  /inn:  1003.  .tf/iojn/mo?'*  Case,   1    \'m- 
/rw,  257.  The  Mayor  of  Hull  vs.  llorne.r,   CVH-JI.  Hi-:.  El 
1  !.  Cockwl^r  V*.  rt'.nahaw,  Dougl. 
',/',.).  The  aci  of  1797.  r/i.    119.  Carroll  rl   til. 
Ltssec,  ti.  ./.  4  //(//•/•.  A-  M-J!  /;.  -287. 

Jiidgffy,  Muson,  and  Johnson,  (Attorney-General,)   for 
the  appellee,  in  their  arguments  on  theirs/  bill  of  cxcepti- 
I.  1.  That  the  acknowledgment  of  the  deed  from 
i  proof  that  ti  .  deli\er\ 

•  that  time.  £.  That  the  memorandums  taken  toge- 
ther, prove  that  then-  v. .1-  a  delivery  at  that  time.  They 
cited  Smarllc  vs.  //VV/u/ms,  1  Salk.  280.  Markham  vs. 
Gonaston,  Cro.  Eliz.  626,  627. 

On  the  second  bill  of  exceptions,  they  contended,  1.  That 
the  land  was  liable  to  escheat,  and  that  the  escheat 
was  prima  facie  evidence  of  an  escheat.  That  if 
or  his  daughter,  died  after  the  4th  of  July  177G,  and  be- 
fore the  act  of  (•••nlWation,  then  the  land  escheated  to  the 
state,  a»  the  next  heir  being  an  alien  could  not  inherit;  and. 
that  it  vas  incumbent  on  the  appellant,  who  claimed  against 
the  r-rhe,.  >  prove  that  this  did  not  happen.  2. 

That  admittinc;  the  land  to  have  been  liable  to  confiscation, 
and  not  escheat,  still  the  grant  ought  to  pass    it;  be< 
at  the  time  of  the  grant,  the  price  of  escheat  and  confiscat 
ed  lands  were  the  •  That   at  the  time   of  making 

.  the  c!iaiiccli,»r  had  authority  to   grant  con1 
ed  lands  under  the  acts  of  1793,  c/i.  04,  and  1795.  rfi.  (>. 
4.  That  1"  Tal  authority  to  j'ldire  and    decide    in 

disputes  i  'he  title  of  confiscated  land*,  and  that 

he  did  so  on  Hammonds  caveat;  an.l    hi>    decision    oughi 
to  be  final  under  the  acts  of  1785,  rh.  (>f»:  April  17H7,  rh. 
:>().  *.  4,  and  17B9,  f/'.  35,  8.4.     5.  That   the   gran 
<  ted  by  the  warranty  clause  in  the  act  of 


OF  MARY  LAND.  Ill 

1781,  ch.  20,  s.  8.     They   referred   to   2  Elk.  Com.  9A[\        1S07. 

The  several  acts  of  confiscation  before  referred  to;  and  the 

acts    of  November  1781,  ch.  20,  s.  8,  *.  6,  17;  1793,  ch. 

64;   1795,    ch,  6;  1785,    ch.  66,  ch.  88,    s.  3;  and    April 

1787,  ch.  30,  s.  4.    Wynne,  vs.  Wynne,  1  Wils.43.  Good- 

title  vs.  Bailey,  2  Cowp.  600.     Walton  vs.  Shelley,  1  T. 

R.  296.     Auckland  vs.  Tankard,  5  T.  R.  578.     Rex  vs. 

TJic  Bishop  of  Chester,  $c.  2  Salic.  561.     Kclhfs   Lessee 

vs.  Greenfield,  2  Ifarr.  fy  Molten.  140.     Hammond  et  al. 

Lessee,  vs.  Norris,  in  the  general  court,  (see  post).   Good- 

title  vs.  Morgan,    1  T.  R.  758.     Git  tings,  jr.  Lessee  vs. 

Hall,  in  the  general  court,  (see  post  112,.) 

On  the  third  bill  of  exceptions  they  referred  to  the  acts 
of  1715,  ch.  40,  s.  7,  and  1797,  ch.  119.  Rex  vs.  Deane, 
2  Show.  85.  Taylor  vs.  Cole,  3  T.  R.  296.  Davidson's 
Lessee  vs.  Beatty,  3  Harr.  ff  M'Hen.  594. 

On  the  fourth  bill  of  exceptions  they  referred  to  the  acts 
of  1797,  ch.  119;  November  1781,  ch.  20,  s.  6,  8;  and 

1789,  ch.  35,  s  5. 

On  the  seventh  bill  of  exceptions  they   contended,  that 

the  mortgage  from  Rawtinga  to  Sccirth.   by  lapse  of  time 

and  the  long  possession  of  the  mortgagee,    had  become  an 

absolute  estate,  and  the  equity  of  redemption  was  gone. 

They  cited  1  Fonbl.  323.     2  Fonbl.  269.     Cook  vs.  Jrn- 

ham,  3  P.  Wins.  288,  (note). 

On  the  eighth  bill  of  exceptions  they  referred  to  the  acts 

of  April    1782,  ch.  60,  s.  7,  8,-  and    1784,  ch.  81.      Strit 

horst  vs.  Grceme,  2  W.  Blk.  Rep.  723. 

On  the  ninth  and  tenth  bills   of  exceptions   they  cited 

Denn  vs.  Barnard,  2  Cowp.  597.     Davidson's   Lessee  vs. 

Beatty,  3  //orr.  &  J/tfen.  594. 

f.  vidt. 


THE  COURT  OF  APPEALS,  at  this  term,  affirmed  the  judg- 
ment of  the  General  Court,  concurring  in  the  opinions  ex- 
pressed in  all  the  bills  of  exceptions. 

The  appellant  considered  this  was  a  case  arising  under  a 
treaty,  within  the  meaning  of  the  constitution  of  the  United 
States,  and  that  the  supreme  court  had  appellate  jurisdicti- 
on therein,  he  therefore  sued  out  a  writ  of  error  under  the 
provisions  of  the  25th  section  of  the  act  of  congress,  en- 
titled, "An  act  to  establish  the  judicial  courts  of  the  United 


(1-2  (    \H-:<  IN   i'ili 

J807.        AV  -.  l>tciiil)cr    1789;  but  tin 

.-:i-;,l  -i  .if_f  it  not  tt>  bo  siu  h 
ctl  tin- 


DF.CF.MBF.R.  Hut    \-».    <i  '< 

INGS  Ji(nf'*.  \.  met  v&   II  «j.i.. 


Ko     «dTfr«ry          (  \  ITl    \  I. s    lYollI    'die-  General    Court.         Th'l>    \\  . 

POMCMMM  of  Iniiit 

CM  arail  BKam.t  a,-tj, ,n  ,,f  ,  ,',,,',,/,/,/  f,,|-  a  trart  of  land  call.'d  7V/V/^/.v///j, 
&££& *tT\hc  Conififi <il«'.  l\iin;in  Hitltiniorf  county.  The  dci'.-ndanL 
lw  bVtbT^M.'  (MM]  '»  tM<>  i'(>m't  b(-l(»w,  took  drl'i-nco  on  uanaiit  lor  ;t 


of  land  called    '/•<//'/ \s   Purchase,   iirantfd    under  an 

M  warmit  on  (ulttm's  Lot.  and  part  of  (  >'H>  „' 

,..- 

found, or  an  atiu-  UllU'n. 

** "'n^adrertary       1.  At  the  trial  at  May  term  1SOO,  the  defend.' 
S^ui^11  ai^'i'nit  to  prove,  .that  (trorife  Hollaing   the  patentee   n|    //../.' 

the      Pnipri.  t:.r\,  .       \-\\c  \  i~rr\     •    A. 

een^eA  to  opt-rnte  /;./,'A,  died  b.'ture  the  year   I.  i>(>,  intotate,  and 


Sir  the  act   of  sue.  not  havinir  (  mivovrd  tliat  land,   and   liwiny;  no 

«onH«f»iii>ru 

TWMtorpeto  capable  of  rahenting.     Tliat  in  the  year  177-4,  Halt**  7V- 

Tnlrd    the    >• 

"I'alHurft  liable  to  ronf  -.ration  in  th>-  roiiiiin-.<inncn,  on  hrlinlt' o>  the   slato,  ami 
dni«!id  ih«-  [MI«,  ,,,,,„  ,,(  a||  oihcr  |><  ••••m 

If  !»•  i  I  lai.it.  I  he-  on  i-  by  r;M.»iul  ihi-  nilii .  -  h)  «r«ir~,  il  i»   (h, 

•KM)  nl  him  who  i. 

If  land  ii  ,•  mi  mi  un.it!, 

*f  laad.  »ui  h  gram  v  .    u  !•  i!.  it"  ifi.  .     .....i.. ,. 

IXMI  :i 

I^iiil  ,    .-nr>.\    inailc  in    rirlnc  of  *u 

McllMt     Will  .      >>ll!     IIUl    |.     II 

frant.aiid  t!i- 

•  •chmt  tyrant  i  I  Iraelnchi 

If  there  an   t»0ili  .«  anil 

b-.undi,  fee    ihr  fr..  -mi  accordii.R  to  il. 

.«  d  to  bctiiuw- of  bit  holtlin^  arfji.u.in:  l;n,,j 
&r.  hi< 

.  :  .i.iniiie  landi.  ni  10  >'  •    iln- l.nid  in  .  , 

...I-  l.y    ilii-  |ilnt>  t' 

• 

wa«  m:;ilr  in  l'*l,  i  •  '  !.«•  l<  i  t;ili  '  i  ' 

•ml  l«-.-ii  «'i 

IT  !..!nl  M  dirh  had 
'  i  »la!).i-,    n  : 

«.ai...- ,:  •!,!    .  ,,    ,..,.:, ,  ;i,    .       .,,  ,  nat  i  • . 
In   r,,.!,..  ,v  pro. 

>'>i>  povirntun 

•  r  irranKv, 

niton   Ihf    fin 
••^•^••••riipn.1'  ^-rj'.Ur.  nix!    .  •    luipjicnt;  «• 

••     -•'••  •  .•        •  M '•  n<  •  o(  11  ,  ,  Sat  lui.ijf  only  a  pro  amptionofnifhl    m  tin- rn - 

i  •  il  mull  r  •  lopil  r'ani. 

ii  dcatii  ia  Mil   MM!  that  ike  *— ^  naated  ta  hi*  dtrute  under  the  midturv  •iuiu 


OF  MARYLAND.  us 

ty  entered  on  and  became  possessed  pro  ut  lex  postulat,  of       1 807. 
the  lands  located  on  the  plots  in  this  cause,  surrounihng 
red  M,  N  and  P,  claiming   the  same  as  his   own,    and  in 
virtue  of  his  patent  for  Tolly1  s  Purchase.     That  the  land 
included  in  the  black  lines  on  the  plots  shaded  yellow,  sur- 
rounding red  M,and  the  land  in  the  blue  shaded  lines  sur- 
rounding red  N,  and  the  land  in  the  yellow  lines  surround- 
ing red  P,    were  in  the  year  1774   actually   enclosed    by 
Tolly,  and  that  he  died  in  the  year  1783,  in  the  actual  seizin 
and  possession,  (so  far  as  he  could  be  seized  and  possessed 
thereof  against  the  state,)  of  the  land  so  enclosed,  and  de- 
vised the  same  to  the  wife  of  the  defendant.    That  the  de- 
fendant, in  virtue  of  his  marriage  and  the  devise,    entered 
upon  the  said  lands  in  the  year  1783,    (so  far  as  he  could 
be  seized  and  possessed  against  the  state,)    claiming   the 
same,  and  hath  ever  since  remained  in  such  seiiin  and  pos- 
session thereof.     That  the   Whole  of  the   three   pieces  of 
land  has  been  under  actual  enclosure   of  fences  from   the 
year  1774  to  this  period,  by  Tolly  in  hislife-time,*claiming 
the  same,  and  from  the  time  of  his  death  by  the  defendant, 
claiming  the  same.     That  Tolly  in  liis  life-time,  and   the 
defendant  since  his  title  accrued  under  the  devise,  and  his 
entry,  have  paid  quit  rents  to  the  Proprietary   in  his  time, 
and  taxes  and  assessment  to  the  state,  since  the  year  1780, 
for  Totty's  Purchase;  and  that  no  actual   entry   ever   was 
made  by  the  state,  or  any  person  on  behalf  of  the  state,  on 
any  of  the  lands  herein  before  described,   except   the  sur- 
veyor, who  on  the  30th   day  of  March  1796,    entered    on 
the  same  to  make  the  survey,  on  which   the  lessor   of  the 
plaintitf  afterwards  .obtained  a  patent  including  the   said 
lands,  for  the  recovery  of  which  this   suit   is  instituted. 
The  plaintiff  then  prayed  the  opinion  of  the   court,    and 
their  direction  to  the  jury,   that  they  being  satisfied  as   to 
the  true  location  of  Holland's  Park,    the   same  being  land* 
escheated  to  the  Proprietor,  and  by  the   act  of  confiscation 
vested  in  the  state,  no  adversary  possession  on  the   part  of 
the  defendant  can  avail  against  the  state,  so  long  as  the  ti- 
de thereof  remained  in  the  state. 

Martin,  (Attorney-General,)  and  Mason,  for  the  plain- 
tiff, referred  to  the  acts  of  assembly  of  October  1780,  ch. 
45,  and  ch.  49. 

vol..   ir.  1.1 


CASKS  IN  THE  COl'HT  OF  APPKALS 

18'  A-    .  '/  Uingsirorthynil  Harper,  for  the  defendm 


U»t  /-on.  -I  //<//•/.  A-  .!/•  / 

Ml.     Jlusxrir*   Lessee   vs.  Baker,    \  Harr.  ff  John?,  71 


Lessee   vs.  Mulott,    1    ILtrr.   »V   ./«/(// 
3  7?/A-.  f  U7,     MuTrui)  Sf   Sansom  ts.  It  id  I  < 

.  .;  7/,/n.  :  »f  u-m.l.l;. 

October  1780,  c/i.  51,  s.  5;  and  Nov.  1781,  rft.  20,».8,  17. 
JBurgetses.  It  luul,  1  H  m.  lilk,  Kip.  171. 

-v,  Cli.  J.  (u).  The  court  are  of  opinion,  that  there 
is  no  adversary  possession  on  the  part  of  the  defendant 
which  can  defeat  the  right  derived  from  the  state.  1'nder  the 
act  of  October  1780,  ch.  40,  the  !-t,ite  bcr.-uiie  actually  1>(1- 
eesscd  of  the  laud;  and  that  act  disprnst-s  \\ith  the  requi- 
.-iles  ucccsiarv  in  the  case  of  the  crown  to  avoid  a  posses- 
<ion  adversary  to  the  right  of  the  crown,  to  wit,  an  ofl'ur 
fouml,  or  an  actual  entry.  By  au  office  found  \i\EngIantl. 
0«e  crown  becomes  actually  sei/.od  and  jw^s^s^cd  of  any  es- 
jjicat  land  in  question.  Tin-  -taio  \\\n\  had  the  riglit  to 
pass  the  act  of  assembly;  ant!  by  that  act,  the  state  by  ii«. 
commissioners,  was  in  as  full  jnjsscssion  of  tJ»e  land  as  il 
there  had  been  an  office  found,  or  actual  entry  by  the  coin 
missioners,  and  ouster  of  the  defendant,  or  those  undei 
whom  he  claims. 

This  case  lias  been  argued  upon  the  principle  of  the  land** 
beins;  held  under  the  idea  of  its  beinj;  part  of  7«//i/'.v  Pur- 
thatf.  The  court  consider  it  as  distinct  from  Tolly**  I 
f/ja*c,  and  as  having  no  connexion  with  the  question.  It 
has  also  been  contended  by  the  defendant's  counsel  on  the 
principles  decided  in  former  (n«-«-J.  The  court  do  not  con  - 
:--r  this  cas»  as  aff<Tted  by  former  deci-ioiis.  In  Kelly** 
lessee  >  'thoron,  and  RusstWa  Lessee  vs. 

Bakrr,  tlie  huuls  had  been  granted  by  common   warrant*. 
afterwards  taken  by  escheal  warrants,   and    there    thf 

under  the  common  warrant.-,    had  had   tin*  a<! 
«ary  possession  for  the  rull  length  of  time,  to  wit,  20  years. 
Hut  in  this  case,  the  -i.iie.  by  the  act  of  1780,  having  vest- 
ed complete  possession  in  its  (  •ommi.-.sioners,    the  adversa- 
ry possession.  fa-  stated  in  the  case,  commencing  at  fmr- 
theat  in  1774,)  could  only  have  continued  till   the  j» 
of  that  act     If  there  had  been  a  subsequent  entry  and  pos- 
•cwion  of  the  land  by  tl>e  defendant,  or  those  under  whom 

(a)  Duvall  and  Done,  J.  concurred. 


OF  MARYLAND.  115 

he  claims,  there  must  then  have  been  a  continuance  for  20        1807. 
years  of  that  adversary  possession  to  defeat   the   right   of 
the  state's  grantee, 

The  opinion  of  the  court,  as  contained  in  the  bill  of  ex- 
ceptions which  was  taken  at  the  trial,  is  as  follows,  viz. 
"The  court  are  of  opinion,  and  so  direct  the  jury,  that  in 
this  case  the  act  of  assembly  which  passed  in  October  1780, 
eft.  49,  vested  the  actual  seizin  and  possession  of  the  said 
land  in  the  commissioners  appointed  to  preserve  confiscat- 
ed British  property,  as  fully  and  am.ply  as  if  the  said  com- 
missioners, as  the  agent  qr  trustees  of  the  state,  had  made 
a  formal  entry  on  the  same.  That  the  commissioners  were 
in  possession  of  the  said  land  in  virtue  and  by  operation 
of  that  act,  from  the  time  of  passing  the  same;  a^d  although 
the  defendant,  or  those  under  whom  he  claims,  continued 
in  the  actual  possession  of  the  said  land,  it  was  the  posses- 
sion of  the  commissioners  on  behalf  of  the  state;  for  where 
two  persons  are  in  possession,  the  one  by  right,  and  the 
other  by  wrong,  it  is  the  possession  of  him  \vho  is  in  by 
right 

"The  court  are  also  of  opinion,  that  the  possession  of 
the  defendant,  or  those  under  whom  he  claims,  was  divest- 
ed by  the  said  act  of  assembly,  and  that  the  act  of  limita* 
tions  ceased  to  have  operation,  or  to  run  from  that  time, 
and  that  he  has  no  right  to  the  said  land  in  virtue  of  tho 
said  possession.  That  the  said  possession  not  being  de- 
rived from  the  Proprietary,  but  taken  and  held  in  opposi- 
tion to  his  title,  the  defendant  cannot  have  any  equitable 
interest  in  the  land,  or  claim  to  the  same  upon  the  state, 
as  standing  in  the  place  of  the  Proprietary."  The  defen- 
dant excepted.  » 

2.  The  plaintiff,  to  make  title  to  the  land  called  Friend '-Kl'vyhere'and  '••• 

pie  to  escheat,  wa« 

ahip  Compleated,  in  the  declaration  of  ejectment  mention  -  y"  j.l^1'(,d  ''.!,*!  "im- 
ed,  read  in  evidence  the  grant  thereof  for  39  and  one  quar-  jj^,,,'"  ou"ali'o- 
ter  acres  and  20  perches,  surveyed  on  the  30th  of  March  £«nt'o™rauTt!! 
1796,  for,  and  granted  on  the  14th  of  March  1798  to,  ftp SKSSfiSnid! 
lessor  of  the  plaintiff,  in  virtue  of  a  special  warrant  of  es- been*  *J££Utta 
cheat  issued  on  the  29th  of  April  1795,  to  resurvey  and  Suit rl'l"i\> "more 

n       i  .      than  20  jears  l:e- 

affect  a  tract  of  land  called  Holland's  rark,  granted  to  fore  the  act  of  coii- 
Georse  Holland.  He  also  read  in  evidence  the  grant  of  the  iau<i  «u,  not 

escheatable  at  the 

Holland's  Park,  surveyed  the  14th  of  October  \683,  anut"»«'  the  escheat 

•  grant  was  obtain- 

ed, the  «tate  wai 
not  wtopped  from  panting  it  to  any   othnr  penon.   A  »  etche-it  gram  relates  to  the  original  grant. 


110  IN  TIIK  COVRT  OY  A1TK  \L- 

18- •-.  ..atcd  the  10th  ,    for 

^^^^        150  acres.     The  defendant  then,  in  order   to  make  title  to 
that  part  of  Toll  .h  ••!  Decem- 

ber 17.37,  for  ;  d  to,  //<;//</•  7ol/y,  on  the  14th  of 

Aug1.:  ,u  i\idei..  iiiu;  iu 

virtue   of  a  spa  nil  ;/<//  /v  / •/  •    I:|.MI    Cn/.'i..' 

granted  to  Thoma*  '<  -,    and    Culhn'x 

.}<l<iilion,   granted    al-o   to    fir^im-in,  for.  .      He 

then  read  in  evidence  the  will  of  Tolly,  the  patentee,  dated 
the  '-0th  of  Juh  1781,  by  which  hede\i-ed  7 ','////"*  Pur- 
chase to  the  wife  of  the  defendant,  who  \t>  still  lixin.^:  and 
he  proved  that  Tolly  died,  po>M>.-ed  thereof,  in  th. 

He  then  offered  evidence  to  pm\e,  thai  (Vom  the 
time  of  the  grant  for  Tolly's  Purchase,  the  quit  rents  on 
that  tract  had  been  paid  by  Tolly,  to  t  of  the 

Lord  Proprietary,  until  the  year  1770,  and   that    the  other 
ient-   imposed  on  lands   had  also 

been  paid   by    Tolly,  and   those  claiming  under  him,    for 
Tolly's  Purchase,     lie  then  offered  evidem -n  to  prove,  that. 
from  the  time  of  obtaining  the  grant  for  Tu fly's  Purchase 
to  the  present  time,  Tolly,  and  those  claiming  under  him, 
have  been  in  the  posses-ion  and   occupation  of  that   land, 
claiming  title  to  the   sr.ne.      He   then  ottered    e\ide: 
prove,  that  his  location  of  Tolly's  Purchase,  and  for  which 
he  has  taken  defence,  and  which  is  described  by  the   plots 
and  the  table  of   courses  No.  15,  is  the  true  original 
lion  of  that  land,  and   that  part  of  the    plaintil; ' 

-  (_'<>i/ij)lui!trl,  ini'TlVre-  with,  and    run* 
foul  of    '/'«////'-  '.      lie  then  prayed  the  opinion   of 

the  court,  and  their  direction  to  the  jury,    thai    admitting 

mfj  /ark,  mentioned  in  the  grant  of  J 
jdeatcd.  was  liable  to  escheat  at  the  time  of  the  .sur\ey  and 
grant  to  Tolly's  Purchase,  and  part  theienf  wa-    included 
in   the  grant  of  Tolly's   Purchase,   then   the  -^'..sequent 
grant  of  the  escheat  on  HdlutmC^  Park,  called  I'fitndship 
the  lessor  of  the  plaintiff,  could  not  operate 
:e  for  any  part  of  the  land   which   v 
eluded  in  the  to  7*0%. 

llarprr  and  Johnson,  for  the  dcfenda 
tit.  Estoppel,  107.  to.  Lilt.  47,  -2x!7,  a.  552,58.    1  < 


.    ( .-•....       •    :     '  '         .   I'm-    the  plain 
tifl;  citeu  Coke  Lilt.  .3.  4  BO.C.  Jbr.  tiu  /.'i/ciy^c/,  107 


OF  MARYLAND. 

is.  Jnwingfi  ct  al.  1  Harr.  fy  M'-Hm.  92.  The       1807. 
Slate  vs.  /;</:</,  -4  I  [an.  &>-  M"Ihn.  G. 


CHASE,  Ch.  J.  The  court  are  of  -opinion,  and  so  direct 
the  jury,  that  if  Holland's  Park  was  cschcatable  at  the 
time  of  the  grant  of  Tolly's  Purchase,  and  possession  and 
payment  of  quit  rents  followed  for  more  than  twenty  years 
before  the  act  of  confiscation,  then  the  grant  for  Tolly's 
Purchase  operate?  to  convey  a  good  title  to  all  the  land 
contained  within  the  lines  of  the  grant.  But  if  Holland?  s 
Park  was  not  escbeatable  at  the  time  the  grant  of  Tolly** 
Purchase  was  obtained,  that  in  such  case  no  part  of  Hol- 
land's Park,  which  is  included  within  the  lines  of  Tolly*  a 
Purchase,  passed  to  fTatt&r  Tolly  under  the  grant,  and 
the  state  was  not  estopped  from  granting  Friendship  Corn- 
pleated  to  the  lessor  of  the  plaintiff. 

The  chief  judge  observed,  that  the  court  considered  this 
decision  conformable  to  that  in  Kelly's  Lessee  vs.  Green- 
field $-  Sothoron.  He  cited  Blackston  vs.  Johnson,  in  the 
general  court  for  the  Eastern  shore,  where  he  said  it  was 
decided,  that  an  escheat  grant  related  to  the  original  grant. 
The  defendant  excepted, 

3.   The  defendant  then,  to  support  his  location  of  Tol-  *«  wheat  grant 

1  '  _  will    pans    all    tlie 

hj's  Purchase  on  the  plots,  offered  in  evidence  the  certiii-  i«nd_eonij»n*«id- 
cate  and  grant  of  that  land,  surveyed  (in  virtue  of  a  spe-  ["^Jie,"  £nd  '^ 
cial  warrant  of  escheat,)  on  the  15th  of  December  1757,  cl'i;'|i;,  ',,,.,,.,,  two 
for,  and  granted  on  the  14th  of  August  1759,  to  Walter  '^  >l'^"^"', 
Tolly.  In  which  it  was  stated,  that  there  "was  laid  jtnttk^'^nm 
for  trailer  Tolly  the  tracts  of  land  called  Cnllerfs  Lot^?gn  T'l'n  „*£ 
and  such  part  of  the  tract  of  land  called  Cull  en  a 


. 
* 


on,  as  is  escheat,   according  to   their   ancient  metes   at&  whjch  u^Tno!*  b 

bounds,    as  showed,       Beginning   for    Cidlcn's  Lot  at   a  gramee 

bounded  red  oak,  being  the  second  boundary   of  the   land 

called  Trucman*s  Acquaintance,  &K&  running  thence  N  Vv" 

S6  perches,  N  E  500  perches,   S  E  £6  perches,    and    then 

with  a  straight  line  to  the  beginning,   containing  and  laid 

out  for  300  acres  more  or  less.     Beginning   for  the  part  of 

Cullcn's  Addition^  supposed  to  be  escheated,  at  the  end  of 

the  N  E  500   perches  line  of  the   land    called    Cullen's 

Lot,    and    running   thence  N  E   142   perches,  S  E  284 

perches,  S  W  •  142   perches,    and   then   with   a   straight 

line  to  the  place  of  beginning,    containing   and  laid  out 

for  252  acres  more    or  less."     Which  being  reduced  in- 

to one  entire  tract  —  "Beginning  at  a  bounded    red  oak,    it 


118  \>F>  IN  THE  COURT  OF  AI'i'K.vLS 

1807.        bt-i,  !  be /nmin^  tree  of  t'nl  .   and  the 

ond  boundary    of  7Vf< //w/j'.s    .•/ctj'aiintttHce,   and  run- 
ning then,  e  N  N\  96  pmhet,  >  !•:  <<i  i  \.  ••.  bei 

perch.  -.  >  U    HOpcrche-sN  \V  1SS  pen  lie-,  and  tlicn  with 
a  strait;! it  lino  to  the  be»iimin»;,  containing  and  laid  out  fur 
I,  more  or  '«•— ."     Ho  U!M>  uttered  in  evidence  the 
lerlifuate  of  survey  of  a  tract  of  land  called  Jlmib! 

Mil   on   the    29th  of  January  \?v:\    for,    and 
granted  the  11th  of  October  1790  to.  .-lyniln  Hall,  the  do 
fendant.      In  which  it  is  statrd,  that  then-,    "uas    laid   out 
fur  tin-  ^aid  Hall,  in  \irtuo  o!  1  warrant  dat'. 

cl   On -i  inlicr  1784,  by  directions  of  the  conuni>-i(i!n  i  -  (IP 
i  (inl:-<  ;ii( '(I    liiiiittli    property,     !i  uf  land,    Ivinj; 

uithin  the  ve>ei\e  of  (iunjiou-iltr  Manor,  a  tract  or  parcel 
of  land  adjoining  (jinifvn-tfir  Manor,  and  adjoining  a  tract 
»u-  parcel  of  land  called    Tolly' x  J'unlutsc,  lieiiiuninu;    at  a 
bounded  stone  set  up  by  the  Kiid  //all,    at  the  end  of  T81 
perches,  on  the  fn>t  lint-  -..f  (ii/nimn-Jir  Manor,    and  run- 
ning thence  \\  ith  and  bounding  on    the    manor    ir\'< 
the  same  S  39°  52'  \V  784  perches,  to  a  stone  marked  ^ 
T,  bein.x  the  beginning  of  the  manor,    and  a  boundary    i,i 
7 'oily' a  1'ni-chuse,   and  the   second   boundary   nt'  Ci/l{i,i\ 
Lot,  thence  bounding  on  Tvl/y**  Furcliu^  N  K  784  perch 
ii\  a  >tr.iijit  line  to  the  beginning,  contain 
.•:d  laitl  out  fi.-r  Kid  acres  more  or  If--."      |j,.   ;, 
ill  evidence  that  7t>%,  the  patentee  of   '/'</////• 
.  died  in  Manh  1783,    sei/.ed  of  the  laniU  diiitained 
within  the  ir,ft->  iiinl  hnniid^  of  that  tract ,  m-cnrdii^  to  the 
said  loraiiiiii:   a;i«l  by  hi>  will  de\i>ed  that  tract  tu  t|,, 
t,f  i!ie  dt'!'.'!i.!aiit,  who  hath  >ince  the  death    of  Tolly,  con- 
tinued in  the  actual  i-ri/in    and    po»e»ion    thereof,    until 

He  al-o  otVen-d  in  e\'n!(  tice  that    he    pun 
«»f  thi-  ''!<e  ti"'»'  in  'he  >ear  178.">,  the  tract  tit"  land 

railed  •»>  l"iated  on  the  plot^. 

•  ,•  Maimr,  whii'h   manor    i^  al-o    located    on    the 
plot-,  and  obtained  a  ^ratit  therefor  from  tin  MI  the 

1  1th  of  October  I7!'i'.      He   al-<,»    nlVeix-d  in  evidence   that 
7V///,  during  h"-->  1'le,  ;,iid  l)eft-i'e  and   until    the  .•Tnuriut/i 
reMilution.  j.aid  the  ijUif  rent^  «lue  upon    TuIh/'> 
to  the  agents  of  the    i'lopi  iet.n  \  do\\n    to    tlie\e.n    177<>; 
and  after  that  lime  lie,  the  defendant,    paid-thc    taxes    due 

:i  under  the  laws  o(   this    state.      The   j)laintin 
offered  in  evidence  a  certificate  of  survey  of  Cullcn'*  / 


OF  MARYLAND.  119 

\eyed  for  James  Cullen  on  the  l^lh  of  June  1683,  un-  1807. 
tier  a  warrant  dated  the  20th  of  April  1683,)  "lying  in  Bal- 
tiuwre.  county,  at  the  head  of  Gunpowder  river,  on  the  N 
side  of  the  S  branch  of  the  said  river,  beginning  at  a  bound- 
ed red  oak,  the  bounded  tree  of  the  land  called  Trueman?s 
Acquaintance,  and  running  from  the  said  oak  N  W  for 
breadth  96  perches,  to  another  bounded  red  oak,  then  with 
a  line  drawn  N  E  for  the  length  of  500  perches  to  a 
bounded  poplar,  then  running  S  E  96  perches  to  a  bounded 
red  oak,  from  thence  with  a  straight  line  drawn  S  W  to 
the  first  bounded  tree,  containing  300  acres."  Also  the 
certificate  of  survey  of  Cullen's  Addition,  (surveyed  for 
James  Cullen  the  25tk  of  September  1683,  under  a 
warrant  dated  30th  of  July*  1683,)  "lying  in  Balti- 
more county,  "updn  the  head  of  a  river  called  Gunpow- 
der river,  beginning  at  the  end  of  the  N  E  line  of  the  land 
called  Cullers  Lot,  and  running  from  the  end  of  the  said 
N  E  line  N  E  284  perches,  from  thence  with  a  line  dra\v  u 
S  E  584  perches  to  a  marked  poplar,  then  running  S  W 
284  perches,  from  thence  running  by  a  direct  line  te  the 
first  bounded  tree,  containing  500  acres  more  or  less.;"  He 
also  offered  in  evidence  that  Cullen's  Lot,  Culteri's  Additi- 
on and  Toll^s  Purchase,  are  truly  located  on  the  plots  by 
him  tke  plaintiff.  The  defendant  then  prayed  the  opinion 
«f  the  court,  and  their  direction  to  the  jury,  that  no  boun 
Uary  being  called  for  at  the  end  of  the  first  line  of  Tolly's 
Purchase,  and  the  second  line  not  calling  to  bind  on  or  run 
\vith  any  other  land,  the  said  first  line  must  stop  at  the 
number  of  perches  called  for,  and  cannot  be  extended  fur- 
ther. 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  the  true 
and  legal  exposition  of  the  grant  of  Tolly's  Purchase  v.  as 
to  convey  all  the  land  comprehended  within  the  true  loca- 
tion of  Cullers  Lot,  and  that  part  of  Culkn's  Addition 
•Ahiih  was  escheated.  That  where  there  are  two  descrip- 
tions of  the  land  intended  to  be  conveyed,  the  one  by 
name,  and  the  other  by  metes  and  bounds,  or  courses  and 
distances,  the  grant  will  operate  to  pass  the  land  according 
to  that  description  which  is  most  beneficial  to  the  grantee. 

The  chief  judge  observed,  that  if  A.  is  possessed  of  two 
tracts  of  land,  Black  Acre  and  White.  Acre,  and  grants 
White  Acre,  the  youngest  tract,  by  metes  and  bound*, 
which  metes  and  bounds  interfere  with  the  lines  of  Black 


(    ISES  IN  THK  C.'H  KTOF  AlTi    \[  - 

1807.         »flcrf,  !'  '.••-  bv  metofl  and  bounds:  for  the 

;  i  able  for  t!ie  grantee.     Tliis 
1  in  the  late  provincial  > 
and  -t    of  appeal1*  (c).     The 

• 

The  plair  .bii-h  the  location  of  Thoi,\i 

iSrtnni'b.'cJ."!-  Choic?*   :l>   '  ''illl  °"    ''"'   I1' 

'v  Choice,    Ci/f/tn's  f.«ty 
Hol- 
land's /'</r/.,  (the  last  trac1  to  tin-  defendant.)    and 
Jamaica,  which  plot  i  iin    Jhtrhi/  /,Y 
avi                                            .1  the  plaintiff  offered   to 
.-,  that  the  .-aid  ]>!»  le  bv  him    from 
runnings  directed  by  the  «!               .  and  made  by  him,  / 
i  -\e\or  of  Hullbiwrc  county,    in  \iitif 
a  \\2rrant  o!                                •  -nn  this  court    in  an  action 

.  bv  the    ! 

<!i.  .  r.      And    the 

jilaintil'  ;;v    of  ./;' 

I  iace    \vh>'  /•    run 

from  a^  t!ie  l:i'^inning  of  Thompson's  Choice,  in  the  said 
runnings  from  which  the  said  plot  so  produced  \\.i-  m;idc. 

o  ii 

\\as  the  same  j  «.  at(>d  on  the  plots  in  this  cau-e  at 

black  II.     But  the  defendant  objected   to  James  Gilt;. 
of  '/'//<>//m>,  bein^  sworn  in  chief,   and    that  I.  >t    a 

•  prove  that  the  place  \\\\<-  !en- 

dant  had  directed  Enter  to  run  from,  in  the  nimiinirs  from 
which  the  said  plot  was  made,  \  which  i- 

Jocated  by  the.  plaintiff  on  the  plots  at  11:  and  olVered  to 
prove  to  the  court,  that  Ja;;:rt  (iitlin^s,  of  Thomas,  \\j- 
th<  aft  of  Ti:  '  '  :  and  produced 

the  cer;  f  Hill's    i 

':,,•{.      '!!••.•    ; 

tin"  ->n  the^4th  of  October  K,Sl.  and 

the  latter  on  the  Nth  of  October  ItiS/i,  and    they  arc  both 

:    in    /ialtiinorf   coi;'.)v.     in     the     woods. 

above  the  head  of  a  i  •  '  river.     The 

former  tract  began  at  a  bounded  red  oak    standing   at    the 

end  of  the  N  line  of  'j'/id  .  and  the  latterbr- 

u  at  a  bounded  •  :.<!  of  IlilCs  /'<• 

(a  j   ,  .  1  linn:    ,  "'23. 


OK  MARYLAND,  121 

Cu.vsi'.,  Cli.  J.  The  court  are  of  opinion,  .that  James  1807. 
f  tilting;},  of  Thomas,  be  admitted  as  a  witness  to  prove 
the  fact  stated  by  the  plaintiff.  The  Chief  Judge  cited 
Hau'kins  vs.  Bcancs  $-  Middlcton,  2  Harr.  i\-  Mullen.  119. 
Chapline  vs.  Keedy,  3  Harr.  fy  M-IIen.  578,  and  Gittings 
vs.  Hall,  1  Harr.  fy  Johns.  23,  to  show  that  it  had  been  de- 
cided, that  if  the  testimony  of  a  witness,  who  is  interested, 
is  intended  to  be  objected  to,  the  land,  in  which  the  wit- 
ness is  alleged  to  be  interested,  must  he  located  on  the 
plots.  The  defendant  excepted. 


5.  The  defendant  produced  a  witness,  who  deposed, 

18  years  ago  he  lived  with  Charles  Ridgely,  who  had  then  j'afn(l£e  afj°)"11,h| 
purchased  part  of  Trueman's  Acquaintance,  a  tract  of  land  l^'^^'^'^K 
located  on  the  plots.     That  Ridgely  told  him  that  an  agree-  ^  iTpp^^g'by 
ment  had  been  before   entered  into  between  Thomas   Git-  ^,  '^erest^i  "in 
tings,  the  owner  of  Thompson's  Choice,  and  James  Green-  f:|c««lisre!ated  "by 
field,  the  owner  of  part  of  Truemati's  Acquaintance,  (which  m 
part  he  had  sold  to  Ridgely;)  that  the  place  designated  on 
the  plots  as  the  end  of  the  first  line  of  Thompson's  Choice, 
according  to  one  of  its  locations  as  made  on   the  plots, 
should  be  fixed  as  one  of  the  boundaries  of  that  part  of 
True/nan's  Acquaintance,  which   Greenfield  had  held  and 
sold  to  Ridgely.     The  plaintiff  then  prayed  the  court  for 
their  opinion  and  direction  to   the  jury,  that  the  declara- 
tions of  Ridgely,  (who  is  dead,)  so  given  in  by  the  wit- 
ness above  stated,   was  incompetent  and  inadmissible,  he, 
Riilgely,  being  interested  in  establishing  the  truth  of  the 
facts  by  him  related  to  the  witness. 

CHASE,  Cli.  J.  The  court  are  of  opinion,  that  the  de- 
clarations of  Ridgely  are  competent  and  admissible  evi- 
dence to  the  jury,  it  not  appearing  to  the  court,  by  the 
plots,  that  he  was  interested  in  establishing  the  truth  of 
the  facts,  related  by  him  to  the  witness.  The  plaintiff*  ex- 
cepted. 

6.  The  defendant,  in  order  to  show  that  the  land  claim-    w,,-tw  m-not 

a     will    inane      in 

ed  by  the  plaintift'  was  not  escheatable  for  the  want  «f  the  'xt'La.^'^,™1 
heirs  of  George.  Holland,  the  patentee,  ottered  to  read   in  ftAVor"^.""'^! 
evidence  an  exemplification  of  the   will  of  Jlollaml,  taken  ?,"','„  n'l 
from  the  records  of  the  late  prerogative  office,   riutcd   the  '-'ir^etu1 
19th  of  February  1683,  whereby,  amongst  other  things,  he  ii""n  du 
devised  as  follows,    viz.  "And  all  the  r?st   of  my  lands,  " 
VOL.  n.  16 


i>'n-- 


122  i  USES  IN  THE  COI:RT  OF  MMT.AI,? 

180T.        goods  and  il.ini!-.  I  giv<   .I'.-l  bequeath  untoJofa 
^-~v— •>        c>t  ;  timntv   aforesaid,  innholder,  and   (•• 

Hull 

heii  The  vill  «'.  -ealed. 

and  attt- 

l  Holland,  (L  S.) 

"Si:  '<-d  and  del'.M'ied, 

in  tin-  pre-ence  of 

11 'in.   Lvthnrp, 

Jinn  '•<    To  i 

Duma  D.  l\trkcs.'* 

And  thus  endorsed:  "June  the  ^d,  1683.  came  before 
me  ina/t/i/i  /.«tfii-i>]>  and  .'/,  »,  tlie  said 

JLathntpe  took  h:>  n-i -j  <>i.il  oath,  that  tlit-  uithin  \\as  sign- 
ed,   M'ali'd   and  di -liu-ml,   .-s  the  act  and  deed  d{   i|u-  >aid 
George  Holland,     flnn  Tovei/,  uliua  Jorc,  t<K»k  her  loipo 
ral  oath  that  she  did  believe  that  the  %\uliin  >i^ned  \\-as  her 
mark — ihe  >.ii.l  Diana,  ni'trtn  - 

'•-Jurat  corani  mi          Jimn  .  f<inLr<>lt!." 

The  plaintilV  diij'.'itrd  to  th»%  >:iini>  hcin^  <i|)i  ird  in  c\i 
dence,  because  it  did  not  appear  tliat  the  will,  if  cx.iiticd 
at  all.  was  att.->trd  Uv  the  witne.-si-s  in  ihc  prr-rru-i-  ot'tli. 
testator:  and  because  it  was  not  the  original  \\ill,  and  did 
not  appear  to  have  been  proved,  so  as  to  authorise  the  .-aim- 
to  be  recorded. 

C'IIASF,  Ch.  J.  The  court  are  of  opinion,  that  the  al>ove 
cirrtinManre.'  arc  niatt»-r- »f  l;.t  t  tn  \w  dt-fn mined  hv  th,- 
:  and  that  they  may  and  ought,  from  the  l.-nut'i  ..! 
time  which  has  elapsed  since  the  making  of  the  will,  to 
presume  that  they  were  complied  with.  The  plaii.titi' 
excepted. 

on  cctuin  r«ct»      7    q'ne    plaintiff    then  offered   in  evidt  i 

(,{      lit!'-      Kll'l 

*^«',  >.arrant  obtained  l>v  Jf'altrr  Tolhl   tin  the   (",th  <•!   .-Ciitcin 

WMXP  t 

er  \7^1.  (in  llHllitnir*  /'fir/.:  that  7W/y  dietl  a  few  month.-. 
Jj^-  ^i,,^.  after  the  date  of  that  warrant,  and  that  Ihe  defendant. 

lio  intermarried  \\ilh  the  dan-liter  of  '/'"//'/,  obtained  an 
h!ldw"^!k<  •'  al  warrant  on  the  22d  of  August  1783,  on  the 

Annual  jnnirt-  Tar   np»ar«U  of  100  yp«P«, 

• 
iln.i  tup.  ^np-r. 

I'tHi-  ijftii.  «rd  ihf  •  i:  i.i   hit  poumioa 

bjr  «HT  prr- 

A  »li-»r  ml  > 

•  Mr  a«   ung  in    Hi  initial    jrranfi.  unJ    until  llie.  failure   oi 

1 1'  it  ii,  H  |in»«-<  in." 
An  tifhiai  (rrant 

.i/)K  but  30  >t»ri  kdviTMiry  VOIHTMIUI,  tan  o«  tc»t  a  title  acquired  under  »  le?»I  jrr»nt. 


OF  MARYLAND.  123 

land,  for  want  of  heirs  of  George  Holland,  the  grantee;  1807. 
that  he  returned  a  certificate  of  survey  on  the  1st  of  July 
1784,  and  obtained  a  patent  therefor,  by  the  name  also  of 
Holland's  Park,  on  the  13th  of  May  1785;  and  that  the 
l.iiul,  so  granted  to  the  defendant,  is  truly  located  by  the 
plaintiff  ou  the  plots.  The  plaintiff'  then  offered  in 
evidence,  that  John  Larkin,  the  devisee  in  the  will 
of  George  Holland,  died  intestate  in  the  month  of  Fe- 
bruary 1702,  leaving  Thomas  Larkin.  the  other  devisee 
in  the  said  will,  his  heir  at  law,  who  married  about 
the  2d  of  September  1697;  and  gave  in  evidence  the 
will  of  T  Larkin,  dated  the  10th  of  April  1731,  in 
which  Holland's  Park  is  not  mentioned;  but  there  is  a 
recital  of  a  mortgage  of  sundry  tracts  of  land  execut- 
ed by  the  testator  to  the  heirs  of  Jlmo-i  Garreft,  more 
than  sufficient  to  pay  the  debt  for  which  they  Were 
mortgaged,  and  he  desired  that  they  might  be  sold,  &c. 
He  devised  other  lands  to  his  daughter  Elizabeth.  That 
T.  Larkin  died  in  May  1731,  leaving  his  daughter  Eliza- 
beth)  the  devisee  in  the  will  mentioned,  his  heir  at  law. 
He  also  offered  in  evidence  the  will  of  E.  Larkin,  dated 
the  25th  of  January  1735,  in  which  no  mention  is  made  of 
Holland's  Park)  nor  is  there  any  residuary  clause;  and 
that  she  died  unmarried,  on  the  4th  of  February  1735. 
He  also  offered  in  evidence  the  deed  of  mortgage  referred 
to  in  the  will  of  T.  Larkin,  in  which  mortgage  Holland's 
Park  is  not  mentioned.  He  also  offered  evidence  that 
Zachariah  Maccubbin  intermarried  with  Susanna,  his 
wife,  on  the  20th  of  July  1704,  and  died  about  the  month 
of  December  1756,  leaving  Nicholas  Maccubbin  his  son 
and  heir,  and  that  N.  Maccubbin  died  about  the  month  of 
March  1787,  aged  about  85  years^  leaving  Nicholas  Car- 
roll (a),  of  the  city  of  Annapolis,  his  heir.  He  also  gave 
in  evidence,  that  N.  Maccubbin  was  a  sensible,  intelligent 
man,  possessed  of  a  large  fortune,  and  very  careful  and 
attentive  to  his  interest.  He  further  offered  in  evidence, 
that  from  the  time  of  the  grant  to  Holland,  until  the  pre- 
sent time,  no  person  has  been  known  to  have  ever  actually 
possessed  or  claimed  Holland's  Park,  claiming  it  as  suchr 
except  the  lessor  of  the  plaintiff,  and  the  defendant,  un- 
der their  escheat  grants  aforesaid.  And  further,  that  no, 
person  of  the  name  of  Larkin  or  Maccubbin,  or  of  any 
other  name,  has  been  known  to  set  up  a  title  to,  or  to  claim 
(a)  Name  changed  from  /tfaccui&fl  by  act  o',' assembly. 


CAH:>  IN  THK  COURT  OF  APIM.  ILS 

1807.        the  Mill    land,  except    um 

it   'fully  lived  adjoining  the  -aid  land    during  tin- 
\\lnili-i.l'  his  lifts  and  was  an  old  man  .it  (lie  time  of  his  death: 
and  also  that  the  defendant.  i>  ;ia  attorney  ul  -icat  le^al  in- 
foriuatiun,  and  ha-  been  in  the  practice  of  tlie  law  for  in 
quite  thirt;  The  defendant   then   read  in  evidence 

the  certificate   and  ^rant  for   Holland'-  panted  to 

George  Holland;  amljja\e  in   evidence  that  Holland  a! 
1'T"  ;;!•!-  died,  h  i\  inu  deviled  t!,i-  land  in  fee  to  John  J.ai 
lln;  that  J.  Larhin  died,  and  lefi  i--ue  t\\ o  children,  77(0- 
t/*<M,  his  heir  at  law,   and   Hcxtir;  that    7'.  J.<irkin   after 
\-.  anU  died,  leaxiiii:  is-'suc  an  onlv  child,  a  daughter,  named 
dVl^ftdhk  whiih  KHz<ilntln\\w\  \\itl«»ui  i--*i<-.      That  Iha 
.•r  of  T.  JMrkin,  .Mid  aunt  to  Elizabeth,  inter- 
married uith  a  ceilain  \irtiulti^  .\i>  /mlfint.    \>*    \\hoin    she 
liad  i-^-ue  Sii>>ti,uni.  her  onlv  cliild  and  heir  at  law.      That 
/HI.  afiei-  the  death  of  Jhxter,  intermarried  with  Za 
tharluh  Maccubl>in.  bv  ulioin  >!ie  Itad  i>-ue  A".  Muccubbin, 
\wr  e!  .1   law;  that  A".  Ma'-i-itbbin,  after 

-       .uli.  died,  leaving  issue  a  son  named  A'.  Car 
roll,  his  heir  at  law,  now  in  full  life,  living  in  the  c  itv  of 
.Innapolis.      He  also  oflered  ev  ideni  e  to  prove  that  Holland, 
the  patentee,  ,7.   I.<»L ///.  hi- devisee,  and   the  before  men- 
tioned T.  firkin,  E.  La  din,  H.  Nidtohon^  S.  Ma  c  cub- 
'•.   Maccitbbin,  and  A*.   Carroll,   hii  son,  have  several - 
all  times  during  their  respective  live-.,    lived  and  iv- 
!"-ided  in  A  ounty  in  this  state;  that  the   laud 

called  //n//rmf.s  /V//A  was  originally  located  in  ]iultinmr< 
county,  and  th;«t  no  person  01  per.-on-  tver  built  on,  im- 
proved or  cultivated  the  said  land,  or  any  part  thereof,  be- 
Vfendanl  in  tliis  cause  in  177J,  and  the  lessor  of 
the  plaintilV  in  ;.art  thereof  which  had  been 

occupied  by  a  certain  James  fli'tims*,  and  tliat  the  P 
of  the  land  lay  v.;--,te  and  unimproved.      He  furtlier  i  ti.  i .  (i 
in  e\i.lei...  e   ti,e   ori-inal   drbt  book*  of  Ila/finiorc  countN, 
and  entrie-  therein  of  the  ;;-eni-  of  t!ie  Proprietary,  on  one 
c.f  which,  vi/..  in  1;  ,-Mtry  in  these  words:  ^(iid,- 

'•»  Li  Dr.  T*>  II >'!•;, ,<{'.<<  /'firL  l.-io  acie>,  (".»." and 

-ite  thereto  the  following  «-ntry,  \i/.  "Can't,  find  any 
mth  ;>er-on  or  land."  And  an  entry  on  the  */j/  roll  in 
the  hud  offte,  made  about  the  year  177?.  in  these  winds, 

-.M.   Hth  October,  1683, 
for  G'tcrjc  Holland,  above  tl:e   iiea-l  ol    f^'iij'o;'-d'.'-  liver. 


OF  MARYLAND.  125 

150.  6s.  Gideon  Linthecomb.  The  bounds  of  this  1807. 
land  being  lost,  the  land  cannot  be  found;  nor  is  there  any 
such  person  in  being  as  Gideon  Linthecomb."  He  also  of- 
fered evidence  to  prove,  that  the  tract  of  land  in  the  said 
entries  mentioned,  was  the  same  land  which  was  surveyed 
for  Holland,  and  patented  to  him  by  the  grant  herein  be- 
fore referred  to;  and  that  it  is  the  land  located  by  the  de- 
fendant and  the  plaintiff"  on  the  plots,  and  that  it  is  truly 
located  by  the  defendant.  He  then  prayed  the  direction 
of  the  court  to  the  jury,  that  if  the  facts  in  the  above  state- 
ment are  true,  that  then  the  legal  title  to  Holland's  Park  is 
in  N.  Carroll,  the  heir  at  law  of  N.  Maccubbin;  that  the 
land  was  not  liable  to  escheat,  and  that  the  lessor  of  the 
plaintiff*  is  not  entitled  to  recover  the  said  land,  in  the  de- 
claration mentioned,  under  his  escheat  grant  in  1798. 

€HASB,  Ch.  J.  The  court  are  of  opinion,  and  so  direct 
t*he  jury,  that  if  they  find  the  facts  stated  by  the  defendant 
to  be  true,  that  the  legal  title  to  Holland's  Park  is  in  Ni- 
cholas Carroll,  the  heir  at  law  of  Nicholas  Maccubbin,  and 
that  the  said  land  not  being  escheatable,  the  plaintiff' is  not 
•entitled  to  recover  thesai<l  land,  in  his  declaration  of  eject- 
ment mentioned,  under  tTie  escheat  grant  to  the  lessor  of 
the  plaintiff  in  1798. 

In  ejectment  the  plaintiff  must  recover  on  the  strength  of 
his  own  title.  The  defendant  may  prevent  his  recovery 
by  showing  a  title  in  himself,  or  by  showing  a  clear  sub- 
sisting title  in  a  stranger. 

Possession  is  presumptive  evidence  of  right,  and  the  de- 
fendant cannot  be  deprived  of  his  possession  by  any  per- 
son but  the  rightful  owner  of  the  land,  i.  e.  he  who  hath 
the  jus  possession^. 

A  clear  subsisting  title  outstanding  in  another,  means 
>«uch  a  title  as  the  stranger  could  recover  on  MI  ejectment 
against  either  of  the  contending  parties. 

Land  is  not  escheatable  as  long  as  there  are  heirs  of  the 
original  tenant  or  grantee. 

Escheat  is  that  possibility  of  interest  which  reverts  to,  or 
devolves  on  the  lord,  upon  the  failure  of  heirs  of  the  ori- 
ginal grantee;  and  he  cannot  grant  the  land  again  until  that 
event  happens;  and  if  he  does,  his  grant  will  pass  nothing, 
and  cannot  impair  any  right  or  interest  acquired  under  his 
original  grant. 


CASES  IN  TIIK  COURT  OF  API'KAI.- 

18  '''ii:  e    of  title:   bui 

being  onlv  a  in   the  Proprietary,  it 

and  if  the  jury 

find  the  fat:  -  »j  die  defendant,  f  ••  of 

a  clear  subsist  in.;  title  in  th'-  h»-irs  cf  <;•  trgt  Holland,  un- 
der the  errant  to  him.  •'.'  fa  /'<•;•/,•  having  been  legally 
granted  to  '.  :  .  ig  i  ,tu  •!.•!'.•. it  his  title. 
and  the  title  of  hi-  h"ir>,  to  the  said  land  under  his  ^rant, 
bt:1  won. 

The  court  are  of  opinion,  tl;;:t  if  the  jury  find  the  facts 

a  been  legally  deduced    from  <'n»r;c  Hol- 

.•.if  Holland's  Park,  to  <'<im>IL 

•  to  Holland's  Park  now  subsists  in  him. 

irr  were      g.  The  plaintiff  also  offered  in  evidence,  an  entry  on  the 

f 

in  the  land  o.'ii-je.  m:ide  about  the  year  1710, 
.  \i/..   '•!  :   I/oft(in<r?,  /''</•/.,  surv'd 

!  l:h  October  It  /<  or#e  Ifv1'  ive  the  head  oi 

riv'-r.  at  a  bounded  true  at  the   end    of  a  par- 
!l,  <  c  1  of  land  called  /////'*  forest,   and  now  in   possession  ol 
IOM,  *».  A«f/!',i  J.ihn  Ford  of  .7.  .L  county."     Also  an  extract  from  the 
md  otlice  of  the  following  tracts  of  land  having  been  pa- 
'.  ''i  (ented  to  George  HnHand,  viz.   Co/.Y/'.s   \tLr!ect,  Holland. 
Dinta.i,  BoUdnfP*  Delight,  Holland  and  Holland's  .'/ 
Also  a  record  of  a  suit  brought  by  Ar.  Maccuhbin's  i 
VS.   AJcilfurd*    about   the   yar    17T)*),    for   estalilishini;   the 
bounds  of  a  tract  of  land  lyi:i:  in  A"<  if  countv,  devised  to 
.-  bv  Col.  fHi-hanl   '  and    \\!i'uh  >uit   was 

tried  at  the  assizes  held  in  Queen-Anne's  county.  The  de- 
fendant then  prayed  the  court  to  direct  the  jury,  that  if 
they  believe  the  fa'  '••')  by  him.  that  then 

:-iption  of  Holland  was  seized 

of  Holland's  Pat!;  at  the  time  of  his  will  a:id  death,  and 
the  same  land  e,  and  no  pre- 

sumption from  the  I  . |  on  the  part  of  tin-    plaintiff 

i  an  .U-'IM',  that   /  i-  not  seized  of  the  said   land   at 

the  time  of  his  will  and  death. 

IIT  directed  the  jury  accordingly.  The  plaintiff 
exec; 

/  .  !  part  for  the  defendant, 

•iont  thereon   for  the   plaintiff.     P.oth  partie-  aj> 
nut  of  appeals,  and  at  November  term 


OF  MARYLAND.  IS? 

1805,  the  points  arising  on  the  bills  of  exceptions,  (the  four        1807. 
first  taken  on  the  part  of  the  defendant,  and  the  other  four 
on  the  part  of  the  plaintiff',)  were  argued  in  that  court,  on 
the  cross  appeals,  by 

Pinl<ney,  Key,  Shuaff  and  Harper,  for  Hall,  and  by 
Martin,  (Attorney-General,)  for  Gittings's  Lessee. 

The  then  Court  of  Appeals  not  having  given  judgment 
when  the  legislature  passed  the  act  of  1805,  ch.  16,  abolish- 
ing that  court,  these  appeals  were,  by  the  act  of  the  same 
session,  ch.  65,  transferred  to  the  present  Court  of  Appeals, 
and  were  argued  at  June  term  1806,  before  TILGHMAN, 
BUCHANAN,  NICHOLSON  and  GANTT,  J.  by 

Harper  and  Johnson,  for  Hall,  and  by 
Martin,  for  Gittings's  Lessee. 

On  the  part  of  Hall,  it  was  contended  by  his  counsel  in 
the  former  and  present  arguments  on  the  first  bill  of  excep- 
tions, 1 .  That  the  Lord  Proprietary  was  entitled  to  the 
whole  of  the  land  in  controversy,  either  by  escheat  or  as 
vacant  land,  in  case  it  was  not  included  in  Tolly's  Pur- 
chase. 2.  That  the  Proprietary  was  liable  to  the  opera- 
tion of  the  act  of  limitations,  and  of  adversary  possession. 
3.  That  he  was  therefore  out  of  possession,  and  had  mere- 
ly a  right  of  entry  when  the  act  of  confiscation  divested 
)iim  of  his  rights,  and  transferred  them  to  the  state.  4. 
That  the  state  acquired  merely  a  right  of  entry,  and  had 
not  a  complete  title  or  right  of  possession  without  office- 
found  or  actual  entry.  5.  Thai  the  want  of  office  (bund, 
or  actual  entry,  was  not  supplied  by  the  act  of  confiscati- 
on, and  consequently  that  the  state's  patentee  had  no  righf 
of  entry,  and  could  not  maintain  the  possessor)  action  of 
ejectment.  6.  That  as  far  as  the  Proprietary's  right  de- 
pended on  the  escheat,  it  was  aright  in pais,  liable  in  its 
own  nature  to  be  defeated  by  adversary  possession,  or  other 
matter  in  pais,  and  requiring  an  office  found,  or  actual  en- 
try, to  perfect  it;  that  it  was  transferred  to  the  state  with 
all  its  original  and  inherent  properties;  and  conseqi' 
was  liable,  even  in  the  hands  of  the  state,  to  be  defeated 
by  the  adversary  possession  of  Tolly,  and  those  claiming 
under  him.  They  referred  to  Russell's  Lessee  vs.  Baker, 


128  <    ^SES  IN   I  UK  (  oriil  OF  Al'Pr:  \1.- 


1807.        1  l!<m:  \John*.  71.    Kclltfx  Lout- 

$•  M-i:  .  .ih.  tit.   /  .  '.n.  •://«»•/, 

448.      /*,•<>.  '4.     4  CoAf,  48,  08. 

On  tin-  -v  c)/n/  bill  of  exceptions  it  was  contended,  1. 
That  if  the  escheat  of  Holland'*  /'ark  had  fallen  at  the- 
time  when  Tolly's  Pun-ltu^  \\.i-  -r.mted.  >o  much  of  tho 
fir«t  tr.u  t  luded  \sithin  the  true  location  of  th.1 

latter  would  pa»s  by  the  grant  of  the  latter.  !?,.  And  that 
if  the  e.«cheat  liad  not  lall-:i,  but  fell  afterwards  >till  the 
lai't-i  i;i:uit  would  ojieratc  as  an  estoppel  on  the  Lord  Pro- 
prietary, (who  it  wu  contended  \\a^  bound  bv  estoppels 
lilvt-  other  person^.)  and  would  pass  the  land  to  the  grantee 
of  the  latter  tract  by  way  of  estoppel,  and  would  defeat 
the  title  of  the  lessor  of  the  plainliH'  under  hi-  «;rant  ct 
/  CinnpleateJ.  They  cited  AW/y*.v  L^.iee  vs. 
Greenfield  y  -~  Hnrr.  >\-  M-//m.  101.  7?//.\.s-r//'\  : 

-,  1  Harr.  \  John  v.  71.      -3  Hlk.   <  Hi  /"//•. 

M.  454,  435,  pi.  9,  10;  48-2,  pi.   1;  484.  pi.  I  T.    I  ft  Lilt. 
45,  a.  .      l.itt.  sect.  58.     6  Mod.  xJ58.    I/nyn.- 

t  /tilthy,    3  '/'.    /?.  441.      4th    Snpp.  to    I'm.  .///.  127 
Fairtitle  vs.  Gilbert,  2  T.  R.  171.  4  C'owi.  7>i>.  78,  I 
The  ^ttornnj-  General  vs.  Snowdeii,  1  Harr.  Q'Johr^ 
Mnalr  vs.  Ilnn-unl*  in  the   general  court,  (see  post.)    O-r 
ings  vs.  Norwoods  Lessee,  (mile  06.)  Hai'-f.-his  i-x.  //</  < 

i   7/ir/rr.  ^  .!/•//•//.  5  •:.".,  (argument  of  counsel.) 
(Mi  the  third  bill  of  exceptions    it  \\;is   contended,    thai 
the  location  ot"  an  CM  heat  grant  was  to  h.-  madr  by  ii 
fTprcssions,  and  not  by  tliosc  in  the  original  grant.     They 

.   r/..  Il(iin)iu»nl<   1  //(in:  ^-./nfnr. 
>.     14  /.  %pl.8.     2  Kail.  ./ 

Hue.  .'/!>.  tit.  G  flints,  (H.)  3  111!.. 

.  .-,so.  /;</,-.  AV.  </).  3.  /A./,.  71. 

On  ihi  AJ./7A  bill  of  exceptions  it  was  contended,  1. 
That  the  <  <!  did  amount  to  a  pre.-timpti- 

fti  in  law,    that  the  will  of  Jlollrnid  \\as  le-rall\  ev  . 
They  cited  //  '  -m.  Rep.  531.    Crnff  vs. 

/'air  1  ftac.  M.  50%.     2.   'Hiatti. 

I'  I'rai.iU  \tend  toihis  country  until  after  th.- 

time  when  //nUtmd^s  \\\\\  wa>  proved.     They    cited  ' 

,  lessee  vs.  Pearce,  1  Hnrr.  <S-  M'lltn.  -:P.    Cm-roWx 
faster  r*.    Ll'irrllin,  fl>id  162. 

On  the  ttvcnlh  anil  eighth  bills  of  exceptions  it  \vas  con 
tended,  that  Holland  was  seized  of  Holland's  Park  at  th* 


OF  MARYLAND.  123 

time  of  his  will  and  death;  that  the  certificate  of  survey  1 807. 
was  four  mouths  before  the  date  of  the  will,  (the  year  then 
beginning  the  25th  of  March,  and  October  of  course  being 
before  February;)  and  that  the  grant  in  1684  would  relate 
to  the  certificate  of  survey  in  1683.  They  cited  18  Vin. 
M.  222.  Pigott  on  Com.  ftecov.  26. 

The  counsel  for  GUtings's  Lessee,  on  the  first  bill  of  ex- 
ceptions, referred  to  the  acts  of  October  1780,  ch.  45,  and 
ch.  49.  2  Hawk.  448,  ch.  49,  s.  1,2.  Bro.  Ab.  tit.  Prero- 
gative, 143,  b.  pi.  91.  Ibidiit.  Devant,  109,  a.  pi.  34. 
Saoil,  7;  (18th  case).  Ibid  70,  (145th  case).  Stanf.Pre. 
54,  a.  2  Roll.  Ab.  184,  pi.  1,  2,  3,  4.  4  Coke,  58.  Tay- 
lor vs.  Horde,  1  Burr.  60, 

On  the  second  bill  of  exceptions  he  cited  10  Fin.  ^M. 
470,  pi.  9;  482,  pi.  1.  Co.  Lift.  47.  b.  352.  a.  Haiti's 
Lessee  vs.  Polk,  1  Harr.  ft  M'Hen.  363. 

On  the  third  bill  of  exceptions  he  cited  2  Shep.  Ab.  281. 
14  Vin.  M.  80,  pi.  21;  83,  pi.  41.  2  Eac.  Ab.  661,  662. 
liac.  El.  86.  2  Mod.  3.  Bulst.  177.  2  Leon.  235, 
Trapp's  case.  Clayton,  14,  Bradford's  case.  3  CoA:«,  9, 
Dowtics  case.  Brownl.  42. 

On  the  sza?/A  bill  of  exceptions  he  cited  Collim  t>s.  Ni~ 
cols,  1  /farr.  4-  Johns.  399. 

On  the  seventh  and  eighth  bills  of  exceptions  he  con- 
tended, 1.  That  the  escheat  grant  to  the  lessor  of  the 
plaintiff  gave  a  presumptive  right*  and  w&s  prima  facie  evi- 
dence that  the  land  was  liable  to  escheat;  that  it  was  not 
shown  by  the  defendant  below  that  there  was  no  such  pre- 
sumptive right,  or  that  the  land  was  not  liable  to  escheat; 
that  presumption  was  a  rule  of  evidence,  and  not  a  fiction 
of  law;  that  the  evidence  offered  by  the  defendant  ought 
not  to  have  been  admitted  to  defeat  the  right  of  the  plain- 
tiff, where  for  upwards  of  100  years  no  person  ever  claimed 
the  land  under  Holland,  except  the  defendant,  a  wrong 
doer,  who  should  not  have  the  benefit  of  presumption  in 
his  favour.  2.  That  the  facts  stated,  although  they  might 
be  true,  did  not  authorise  the  court  to  direct  the  jury  to 
make  the  presumption,  that  Holland  was  seized  of  the  land 
at  the  time  of  his  will  and  death,  no  person  ever  having 
claimed  or  held  under  his  will. 

Curia  adv.  ritlf. 
VOL.  IT.  17 


130  CAH>  IN  THE  COURT  OF  APPEALS 

1807.  Tin  \        \'.s,  at  the  present  terra,    affirmed 

•rU  of  the  (uMUT.il  Court  on  both    appeal*,   con- 
lunin^  in  r.i?  opinions  pronounced  in  the   several  bills   ol 

TiL".irr.\N,  J.  gave  no  opinion    on  the  third   bill  of  e\ 
ceptioos. 


DECEMUF.R.  II  \\:MO\D.  ct  it!.  I.essei  .  -.KIS. 

A  de«i  tocotH  «i       AJTF.AL  from  the  General  Court.     The  appellant  brought 
"" •»"••';• "'"'  ,':ot  an  action  of  ejectment  for  a  tract   of  land  culled  Part  of 

•MNWVTlWuVU  Uy  *' 

:  in  Frederick  county,  containing 
!!r,n,uJ 'ho* "j  -  :  T!;(>  di-!Vndant,  (now  appellee,)  took  del 

•!"*» Vi,i!ty  °11   "'arrant  under  the  ueueral  issue  plea,  and  by  his  loca 
OK  the  !•'  •  1.  «lefi-n:led  himself  under  his  ti- 

landtall  ••'.?  Freehold.   ie-.»rvejed 

htr  on  t':u-  12th  June  1785,  an-1  granted    to 
i -it  on  tli  -M->t»»nib:'r  1800.     The  cause 

i-iifi.  i  "  was  tried  \\\  '  .\\  court  at  Mavtorm  180.1. 

1.   Ti;"  |  1  '.iii'i:!'  !i;ivin^  located  on  the  plots  a  deed  from 
vr  lai"1  ""'  fi-in  L  ol'ered  to  read  in  evidence 

in  •  iiTiri,-*!.-  .,t' 

.'ember  1753,  beinc 

'   \  Cli 

>    •   ;.  of  mortgage, conreying 

1  "ofh  ih-^un*°  ''•'"  "  '  two  |)i:n'1''^  «>f  land,  being  parts 

of  liiid  fi!!.-d  H'onTa  fnrhwre.,  and   sold  to  the 

;;  -ai !  ./  /,  one  parcel   containing 

U..-.1  lo  lak--    U|i  v»-»«t    l:i-id».    tot  OUt 

•   nrrrjr- 

.•ii    i!nr  ruin,.  11  paid;   ind 

:i|Micart  that  hi«  ci 

•  il  mi  s 
.  is    imiil    ii|nin 

(•'iri'li.niT    willi  iiit  11 

.  %u|.  nr-,    I'mt  'iy  tl> 
of  Ihr  Un'1  office  iHr 

- 

i  nil  in- 

-  illy  lit- 
iii.l  -r  Iiit  i;r»m  in  « 

iC  o«rt  "T  •  trict,)»Uli-int  cf>"r«Pt  or  (ti«U»c«.  hul  n  f  n-inj  to  >nn- 

•  ,   ii.  t'i  »MJI|I  irt  id. 

•'ie    Hft  •rr<-«.  or   to 
,  •   the  8fi  acrr» 
. 

"Hit  of  Ihr    lind  liir  wlnrli 
ilainlifl 
• 

•     »  ill   «i|it  hii  p«ir 
irjr  riniKM  fmj  a  In  i '.,   it  they  find 

'"•nriitiug  i>  lo  be  fu<in<l  '•* 

.1     til  .  UICI   ffn.ulli 


OF  MARYLAND.  131 

8G  acres,  the  other  94  acres,  as  by  deed  duly  made,  and  1 807. 
recorded  in  the  records  of  Frederick  county,  appears;  the 
said  two  parcels  of  land  being  also  what  the  said  J.  How- 
ard's dwelling  plantation  is  made  upon;  also  all  that  tract 
of  land  called  Chance,  lying  in  Frederick  county,"  &c. 
To  the  reading  of  which  deed  the  defendant's  counsel  ob- 

O 

jected,  upon  the  ground  that  being  a  mortgage,  the  plain- 
tiff must  show  how  Howard  became  possessed  of  the  land, 
or  deduce  his  title;  that  although  the  deed  is  located  on  the 
plots,  if  it  is  a  bad  deed,  it  cannot  be  read  in  evidence  to 
prove  a  location. 

CHASE,  Ch.  J. (a).  The  court  are  of  opinion,  that  if  a 
paper  or  deed  is  located  upon  the  plots,  and  not  counter- 
located  by  the  opposite  party,  the  party,  who  so  locates  it, 
may  read  it  to  the  jury,  to  show  how  it  is  located;  but 
when  the  validity  of  the  deed  comes  in  question  before  the 
court,  if  it  is  bad,  the  court  will  direct  the  jury  that  it  is 
a  defective  deed,  and  is  to  have  no  effect  with  them,  but  to 
be  wholly  disregarded. 

The  court  think  the  objection  by  the  defendant's  counsel 
is  not  a  valid  one,  and  that  the  deed  may  be  read  in  evi- 
dence of  the  plaintiff's  location  of  it  on  the  plots.  The 
defendant  excepted. 

2.  The  plaintiff  then  read  to  the  jury  the  deed   from  /.    Thc ,ckrk  nf  a 

«•       *>.  court   lins    no  au- 

Howard  to  P.  Hammond,  with  the  permission  of  the  court,  ].';.';;;[> 'Ij7,-,1;.*^ 
(though  objected  to  by  the  defendant,)  as  evidence  that  the  l!;Ltl'e liii'.iml'u 
deed  was  located  upon  the  plots.     It  was  admitted  by  the  SaSfni' *w'"p^ 
parties,   that   Wood^s  Lot  and   WoodPs  Inclosure  are  one 
and  the  same  tract  of  land,  and  that  there  are  two  names 
for  the  same  land.     The  defendant,  to  prove  that  J.  Howard 
never  had  any  interest  or  title  in  J  Toad's  Lot  or  /food's 
Inclosure,  or  in  any  part  thereof,  located  upon  the  plots  as 
beginning  at  a,  offered  to  read  in  evidence  the  certificate  of 
the  clerk  of  Frederick  county  court,  under  his  seal  of  office, 
certifying,  "that  among  the  records  of  the  s.iid  count v, 
from  the  commencement  of  the  said  county  up  to  the  veai 
1775,  there  is  no  deed,  bond  of  conveyance,   or  other  in- 
strument of  writing,  from  Joseph  flood  to  John  Howard, 
for  or  respecting  the  land  called   Hood's  Lot,  or   71  / 
Inclosure,  except  a  deed  for  ninety-four  acres." 

(a)  Done  and  Sprigg,  J.  concurred. 


132  CASES  IN  THK  COl'RT  OK  Al'I'EALb 

The  plaintifTs  counsel  objected  to  ti:r  reitifu;ite  liv  tl.o 
clerk  of  frnltrick  county  court  hriiiu,  n-.al  in  «-\idencef 
because.  they  contended,  it  was  not  tin-  dut\  <«l  tht  tleik 
to  certify  that  there  were  no  dccdx  remaining  en  innrd  in 
\\\>  office;  that  his  duty  va-  to  ^i\c  exemplifications  of 
Mich  as  iiii^ht  appear  on  in  urd.  That  the  clerk  ought  to 
have  been  .«,?'/.;•«»/'</,  if  the  party  wi>hed  tlie  benefit  of  the 
evidence  ottered,  and  examined  him  as  a  \utne»s,  whether 
he  had  searched  for,  and  could  not  find  siuli  d« 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  the  certi- 
ficate given  by  the  clerk  of  Frtdiriil,  rounty  court  is  ille- 
gal and  incompetent  evidence,  and  refuse  to  let  it  be  read 
to  the  jury. 

The  clerk  has  no  authority  by  law  to  certify  a  fact  un- 
der the  seal  of  the  court  of  which  he  is  clerk.  Hi-  duty 
is  to  grant  exemplifications.  The  defendant  excelled. 

r.roi  rri.ien«e      3    The  defendant  then  ottered  evidence,  [a  wilncss  In 

•ot    aitmiuru     to 

of°UnU1"iluciudrf  Prove  the  confession  of  J.    Howard,']  that  the   hind   called 

'S^fSsS?*'1    °f    Woofs   Indosnrt,   included   in    the    certificate. 

RKm^  thereof,  made  for  J.  Houimi,  and  dated  the  5th  of  March 

under  which  the  plaintiii  thiin.s  title,  in  \<T  was  ac 

tually  Minr\fd  under  the  warrant  uhercon  that  certiiic..;o 

is  allf.ed  to  t)o   founded;  that  the  certificate  was  not  made 

by  /•<-,>  i!;e  th-Mitv  -nr\e\i;i  of  Ffi'lirirli  county, 

or  bv  ;inv    t.'hir  pei-cn  duly  authorised  to  make  the  >ame, 

but  that  the  s:  i:ia«le  b\  J.  I/ward  hin^ell,  by  re- 

.  ••iher.  without  any  actual  »ui\e\. 

Cn\-).  Ch.  J.  The  court  rcfiiM'  to  let  the  defendant 
give  the  evidence  ofi'<  -red,  or  an;,  reof,  to  the  ju 

ry,  (a).     The  defendant  exc  .  •[  .1-  -d. 

r»r«i  o»dmre      4.   The  plaintifl',  to  make  title  to  the  land   in   the  decla- 

•Jmi'tnl,  »  th  ihr  '  ... 

,,i    IK  ration  ol  ejectment  mentioned,   read  in  evidence  the  war- 

C-|H«,    to        |. 
!•».   |>rarfic^» 

tn-l  U'nr1  «  c,l 

A  r<  M.IIII.II  »»ri»i,  .-  IIT  unrnliirttcd  vacant  land  in  llir  count}-,  if  no  pcnon  hai 

>:ilr<1  vm  ant  lainl.  in  »lm  ',  mil  qumtity  i.f  acn* 

•rr  4*«i|(i>ati  <l   mil  ih<-  |»r'jr  p>><  thr  compwi'inn  IMM|  *t  the  lunr  of  obuiiunf:   iU<-  »nmint. 

A  »»n:if  •  >,\  r«-«i.'  a  tnrt  or  |wrci-l  nl  land  n 

tte  |*«tj  kM  •  fee  «  .  [mrty  thcirby  •cquirrt   •   right    >  'juUmf 

>Ji«l.t    llUlll. 

a  warrant  of  murvr)-,  not  havinr  »   title  to  the  oririnal    trnrt    rr«urvryrd,ar- 


a  warrant  of  murvr)-,  not  havinr  »   title  to  the  oririnal    trnrt    rr«urvryrd,ar- 
quin«  p«i<l;   anil    hn 

,'>..ii,.- 
•    olHirv.),  not  con.- 


rr>nt  thrfrll  i  ,'>.. 

land  < 


(a)  Sr«    /famine  fid    ct  ul.  Ltuee    v».  Skertdi*e,  4  Ilarr. 
\  Hen.  420. 


OF  MARYLAND  133 

rant  of  resurvey  which  issued  to  Jolm  Howard,  on  the 
6th  of  February  1755,  "to  resurvey  part  of  a  tract  of 
land  called  H'ood's  Incloaurc,  originally  laid  out  for 
86  acres,  to  amend  all  errors,  and  to  add  tlie  contigu- 
ous vacancy,"  &c.  Also  the  certificate  of  survey,  dated 
the  5th  of  March  1753,  made  in  pursuance  of  Hie  warrant 
of  resurvey,  stating,  that  k'by  virtue  of  a  special  warrant 
of  resurvey  granted  to  John  Howard,  to  resurvey  part  of 
a  certain  tract  of  land  called  Jfoo.  •//•<?,  originally 

Jaid  out  for  86  acre;;,  l>oaring  dale  the  Gtii  of  February  1753, 
to  resurvey  the  said  land,  to  amend  all  errors,  and  to  add 
the  contiguous  vacancy,"  &c.  The  survey  or,  Ixuac  Brooke. 
certified,  that  he  had  resurveyed  the  land,  and  found  no 
error;  that  he  had  added  a  piece  of  contiguous  vacancy 
containing  2200  acre,s,  "beginning  at  the  original  begin- 
ning, and  running  thence  with  the  original  N  68°  W  54 
ps.  N  19°  W  60  ps.  then  S  8°  W  81  ps.  S  53°  E  48  ps.  S 
52°  W  98  ps.  N  25°  W  38  ps.  N  23°  AY  80  ps.  N  5°  W 
106  ps.  N  36°  E  95  ps.  to  intersect  the  beginning  of  the 
N  7]J  E  130  ps.  course  of  a  tract  of  land  called  Howard's 
7?«//ife,  and  running  with  said  courses  N,"  £.c.  &c.  ''con- 
taining 2286  acres  of  land."  Also  the  assignment  of  How- 
ard to  Philip  Hammond,  on  the  29th  of  November  17 Jo, 
annexed  to  the  G3rJ.jfica.te  of  survey,  whereby  Howard  as- 
signed to  Hammond  "the  certificate  returned  on  a  certain 
resurvey  had  and  made  upon  86  acres  of  land,  being  part 
of  a  tract  of  land  called  Wood**  Inclosurc,  originally  taken 
up  by  Joseph  Wood,  together  with  all  his  (the  said  Hou<- 
ftrd's,}  right,  &c.  of  and  in  the  said  certificate  and  the  land, 
which  by  resurvey  contains  2286  acres,"  fyc.  Also  that 
the  certificate  was  examined  and  passed  on  the  6th  of  March 
1754;  the  composition  money  paid  on  the  7th  of  March  1 754, 
and  the  quit  rents  paid  up  to  the  7th  of  June  1771,  amounting 
to  £80  5  0.  Also  other  indorsements  on  the  certificate, 
showing  that  it  was  on  the  SOth  of  January  1772,  car  ceded 
by  Philip,  Ilezin,  and  Matthias  Hammond',  on  the  1 6th  of 
March  1772,  caveated  by  Edward  Horsey,  of  John;  on  the 
29th  of  October  1772,  caveated  by  Thomas  Horsey;  that 
the  caveats  were  dismissed  by  the  act  of  April  session  1782; 
that  there  was  an  entry  in  the  margin  of  the  book,  iix. 
which  the  warrant  was  entered,  that  a  caveat  had  been  en- 
tered by  Grcenbury  Ridgchj,  and  others,  in  1754,  and 
which  had  not  been  noticed  when  the  other  caveats  were 
entered  dismissed,  and  a  list  thereof  forwarded  by  the  re- 


*  CASES  IN  THE  COURT  OF  APPEALS 

1807.        nptrr  of  the  land  office;  that  the  last  mentioned  caveat  of 
;/  ar>/  Kiiiztly   was  withdrawn    by   liichurd  liidi.'ili/. 
ri  and  heir  at  la\\,  and  that  patent  had  issued  on  the. 
9th  i, I"  >eptcmber  I7(.!(>  to  J'liilijj,  Xcin.  and  diaries  Hutn- 
inond,  and  liichard  Ilcj  /ii/.s  ami  JJunna/i  hi*   wile.     Al-o 
the  la-t  will  and  tou.iiu  i.t  of /J/< /'///;  Jhninnontl,  (the  elder,) 
daicd  the  6th  of  June  175.',  therein  it  dot-  n<  t  a|.j.i\ir  that 
the  land  called  Part  oflfootfs  Inclosurc  is  mentioned,  but 
by  his  will  '"all  the  ie>t  and  residue  of  the  real  and   | 
-mini    e-iuTe"  of  the  UMator,  is  de\i?>ed  to  his   si:\  son*, 
r/W/f.v,  Joint,  Philij,,  Jhntot),  Jtcin  and  A/<///AiV/.v,    to  be 
equally  divided  between  them,  and  their  heii>,    as  tenants 
in  common.     The  plaintiff'  also  offered  in  evidence,  that 
P.  I/anniwnd,  the  testator,   died  some  time  in  the  year 
17CO,  and  that  Charles  Hammond  was  his   elde.«t   >on  and 
heir  at  law,   to  whom  the  title  which  J\  H<i}i,n'<<ntl,  the 
father,  had  in  the  land,  descended,  and  who  became  enti- 
tled to  all  the  interest  his  father  had  therein  (a).  The  plain- 
tiff then  deduced  a  regular  title  from  C.  Hunnnond,  down 
to  the  lessors  of  the  plaintiff'.     Also  that  the  tract  of  land 
for  which  this  suit  is  brought,  as  well  as  the  several  tra 
or  parcels  of  land  described  in  the  grants  and  deeds  afore- 
said, arc  truly  located  by  the  plaintiff'  on  the  plots.     The 
defendant  then  ottered  evidence  to  prove,  that  there  I 
no  tract  of  land  in  the  county  of  Fredtriik  puk-nki1  by 
the  name  of  I  food's  Inclosure,  or  so  called   in   the  certiii- 
.•  for  the  same;  that  a  tract  of  land  situate  in   I ncuick 
countv,   y\as  on  the   10th  of  January  1748-9,  resurve 
for  Josejih  /Joorf,  by  virtue  of  a  warrant  of  ie>ui\ey  dated 
the  28th   of  July    1748,   and   patented   to  him,  the  l^t  of 
June  1750,  for  1540  acres,  and  called  in  the  certificate  and 
patent  thereof,  ff  ood*s  Lot;  that  this  land   did  afterwards 
acquire,    in    the  neighbourhood  where  it  lay,    the    name 
;'.t  /ncloattrc;  that  a  tract  of  land  contiguous 
thereto,   Mir\--\ed  on  the  12th  of  November  175:2,  called 
Tin  .    and   located    upon  the  plots,   did   actually 

begin  at  the  end  of  the  i'Jth  line  of  Wood's  /,o/,  but  in 
the  certificate  t  Us  to  begin  at  the  end  of  the  l')th 

line  of  Wood's  Inclosure;  thai  several  me-ne  u>nM-\;mce«. 

(a  )  The  counsel  for  the  plaintiff,  in  thin  part  of  the  statement, 
which  fhry  had  drawn  up,  stated,  that  ('.  J/ammnndhid  hrcome 
fttt\it<\  jinnil  In  potlutat."  to  which  the  counsel  for  the  dcfend- 
ecicd.  THK  C  ounT'aid  t»ifseexprf-«i(.n- xvric  only  pr\>- 
per  w  II.TC*  /  Knl  title  dei>cends— In  this  case  an  equitable  tide  only 
descended  to  C.  Ilammoii-f. 


OF  MARYLAND.  135 

for  parts   of  Wood's  Lot,  executed   by  the  proprietors        1807. 
thereof  between  the  years  1754  and  1759,  call  and   des- 
cribe the  land  by  the  name  of  Wood's  Inclosure.     The  de- 
fendant then  read  in  evidence  the  patent  to  Joseph  Wood, 
ilated  the  25th  of  March  1747,  for  the  land  called  Wood's 
Lot,  containing  126  acres,  and  granted  to  him  for  so  much 
land    due  him  by  virtue  of  a  warrant  for   that  quantity 
granted  him  the  18th  of  February   1746,  which  tract  is 
stated  to  lie  in  Prince- George's  county,  and  beginning  at 
a  bounded  oak  standing  on  the  E.  side  of  a  small  branch, 
&c.  agreeably  to  a  certificate  dated  the  25th  of  March 
1747.     The  defendant  then  offered  evidence  to  prove,  that 
Wood's  Lot  is  truly  located  upon  the  plots,  as  beginning 
at  A,  and  described  by  black  lines  from  No.  1  to  No.  43, 
black  figures.     Also  that  /.  Howard  never  had  any    inte- 
rest in,  or  title  to,  any  part  of  Wood's  Lot,  or  Wood's  In- 
closure, either  in  law  or  in  equity,  except  as  to  94  acres 
part  thereof,  which  94  acres  are  truly  located  on  the  plots; 
and  to  prove  this,  the  defendant  offered   the   evidence   of 
the  clerk  of  Frederick  county  court,  the  keeper  of  the  land 
records  of  that  county,  to  prove,  that  among  the   records 
of  the  county,  from  the  commencement    of  the  county  up 
to  the  year  1775,  there  is  no  record  of  any  deed,  bond  of 
conveyance,  or  other  instrument  of  writing,  from  Joseph 
Wood  to  J.   Howard  for   or  respecting    Wood's  Lot   or 
Wood's  Inclosure,  except  the  deed  for  the  94  acres  above 
stated.  Also  the  evidence  of  the  clerk  of  the  general  court 
for  the  western  shore,  that  among  the  records  in  his  office 
there  is  no  record  of  any  deed,  bond  of  conveyance,  or  in- 
strument of  writing  of  any  kind,  from  J.  Wood  to  J.  How- 
ard, respecting  Wood's  Lot  or  Wood's  Inclosure.,  the  plain- 
tiffhaving  on  the  trial  produced  no  such  deed,  bond  of  convey- 
ance, or  instrument  of  writing,  or  any  copy  thereof.     Also 
that  J.  Howard,  or  any  person  claiming  from  or  under  him, 
never  was  seized  or  possessed  of  any  part  or  parcel  of  W'ood'a 
Lot  or  Wood's  Inclosure,  except  the  before  mentioned  94 
acres.     Also  that  the  86  acres  of  land  located  by  the  plain- 
tiff upon  the  plots,  as  the  original  upon  which  the  resurvey 
called  Part  of  Wrood's  Inclosure  is  pretended  to  have  been 
made,  was  always,  from  the  taking  up  thereof,  to  wit,  from 
the  10th  of  January  1748,  till  the  year  1780,   in  the  pos- 
session, occupation,  and  actual  user  of/.  Wood,  the  paten- 
tee, by  actual  iuclosure  of  part,  and  by  cutting  and  using 


i    ISES   IN    niK.  KHin    (»!•     MM'KALS 


1907.  !  during  all   that    time 

«  —  „  —  ; 

. 

Ill    'I.  \ 

i  e.Vti  to  th 

1  .  .  .  the   like  ;  :unl 

ocrupaiion  (if  the  ti  under 

./.  .     'i  !  n.it  and  T  anv  ti1  ir    from 

./.  //>.'/vn-.f.      The  d  '  in  e\iden<  e   :i  deed 

/torn//,  for  part  of  ff  oorf* 
•,  dated  the  "2U(li  of  .hint'  1  T.1 
ii  of  .I,iii'«  ir^o,  ifon.l  iiiul  convey- 
ed tn  part  {»f  rr.vj  r.v  A 

had    is- 

tin*  laud.  In    t.'i"   nanx-    of  ffootfs   Luf, 
although    commonly    called    and   k'i  rvn    t>y  the  name  ot 
"v   //?(7(»s\vrc.     Thi-  .nfinn 

«hc  title,  ice.     \N"iiii  1.  .  c.n   tlic    plot- 

as  lii'jinnin.  :  bv  vi-llo\v  litu-s.    Thai 

I757i  /-'  nStaiurd   a  uprdal 

H-tin-tin!  to  1 

to  him,  which  >  that  he  \\a>   M-i/.ed  in  fee  of 

.-iiid  in  .?K4  acres  of  land,  jiart  of  /^oo<r.»  Zo/,  lying  in 
frederlck  county,  originally,  on  tlte  1st  of  June  1750,  grant- 
•d  !»v  p.ifi-'i!  ol  •  'r«:i  to  Jos*  nit  I  food  for  1540 

.u  ri  -,  co!iii^!|i!!i^  to  which  he  had  di-co\  eri-d    some  vacant 
land,  and  bt-in-  •!r^::n-.i>  to  add  the  same,  prayed  a  special 
i  ian;  to  rvMirwv  hi-  part  of  the  -aid  tract  —  uarrarn 

Kited  to  him,  ,\  .,ade   f.,i 

£•   H<»  ^  i  he    18th   of  Fehrnarv  IT.l.S,   in 

i  ant,  bv  which   certilicale  it  api» 

that  the  vii'l  y,  cotitaine-l  oidv 

^>'"  .nd     \\ere     add.'d. 

:ind  tailed    Thr  /.'.•,  •  vr»/  /,<»/,  contain 

tO      1'..      /Ai/'.sr//    f,,l     the    -aim- 

l.i:id,  I).  ,  of  Feliniary  1758.      A!x»  that 

the  lf»th    of  « 

-  ''          nded  (o  hi-  heir  at  law 
the    land    so    m-anted    to     [•'.. 
1   '••!  ihe  plot-  l>e^:rininj:  at    B,    and 
lie    !      •-  IVnni   I   to  .IS,    red    li  - 
.-f  e,i<  h  line    uith    r-  •!     P  A\"  I. 
:inj;im- 
i 


OF  MARYLAND;  137 

Woofs  Lot,  from  the  date  of  the.  certificate  thereof,  un-  r'1807. 
der  the  aforesaid  title,  down  to  the  bringing  of  this  eject- 
ment, part  of  it  in  cultivation  and  under  actual  enclosure, 
and  part  being  in  woods  uninclosed,  by  cutting,  using 
wood  on  and  therefrom;  and  that  /.  Howard,  or  any  per- 
son under  him,  never  did  use,  occupy,  possess,  or  in  any 
way  enjoy,  any  part  of  the  lands  included  in  the  resurvey 
called  The  Resurvey  on  Part  of  Wood's  Lot,  or  any  part 
of  the  lands  included  within  the  lines  of  the  resurvey  call- 
ed Part  of  Wood's  Iiidosure.  The  parties  in  this  cause, 
by  consent,  examined  John  Callahan,  esquire,  the  register 
of  the  land  office  for  the  western  shore,  who  deposed,  that 
according  to  the  law,  practice,  and  usages  of  the  land  of- 
fice, prior  to  the  year  1753,  and  ever  since,  no  person  was 
entitled  to  a  patent  on  a  certificate  returned  on  a  warrant 
of  resurvey,  unless  such  person  was  seized  of  an  estate  of 
freehold  in  the  original  whereon  the  resurvey  was  made. 
That  by  the  law,  practice  anxl  usages  aforesaid,  from  the 
time  aforesaid,  if  the  person  so  having  returned  a  certifi- 
cate, and  had  by  the  same  included  vacancy,  and  had  paid 
tt)  the  officer,  entitled  to  receive  it,  the  full  amount  of  cau- 
tion money  for  the  vacancy  added,  and  the  land  was,  after 
that  payment,  included  in  a  subsequent  certificate  on  which 
the  caution  money  was  fully  paid,  although  subsequent  to 
the  payment  of  the  first  caution  money,  that  in  such  case, 
i-f  the  prior  certificate  was  caveated  in  the  land  office,  and 
it  was  proved  and  made  appear  to  the  judges  of  the  land 
office,  that  neither  the  person  for  whom  the  prior  certifi- 
cate was  made,  nor  any  one  claiming  the  certificate,  had 
any  legal  estate  or  seizin  in  the  original  on  which  the  cer- 
tificate of  the  resurvey  was  made,  that  then  the  prior  certi- 
ficate would  be,  and  ought  by  the  said  law,  practice  and 
usages,  to  be  vacated,  and  a  patent  ought  to  issue  on  the 
second  or  subsequent  certificate,  if  that  certificate  was  not 
in  other  respects  liable  to  objection;  and  that  upon  so  va- 
cating the  first  certificate,  the  party  claiming  the  same 
would  be  entitled  to  as  much  land  warrant  as  would 
amount  to  the  sum  of  money  so  paid  for  caution  money. 
Mr.  Callahan,  upon  cross  examination,  deposed  that  he 
has  been  in  the  land  office,  except  fifteen  or  eighteen, 
months,  upwards  of  thirty-four  years;  that  he  came  into 
that  office  in  the  year  1767.  He  knows  of  no  propre^ary 
instructions  given,  that  a  person  taking  out  a  warrant  of 
VOL.  n,  18 


i   kSBS  IX  THE  COfRT  OF  APPi.  \ 

1807.        resnrvrv  on  lands  of  which  ho  was  not  vi/.ed  in  fee.  mid 
in  virtue  of  that  warrant  including  vacant   land  and  com- 
pounding for  the  same,  \\hich  prevented  such  person  from 
having  a  patent  for  such  vacant  land.      15ut  that  it  was  the 
under-landing  ami  practice  of  the  office,  in    hi*  lime,  that 
such  patent  would  not  be  allowed.      Ho  knows  «f  no  usa^e 
or  instance,  in  which  a  caveat  has  been    hoard  and   deter- 
mined  unless  the  caveator  did    show  an  interest  in    the 
lands  at  the  time.     He  does  not  kno.v  any  instance  in 
vhich  the  caveat  has  prevailed  unless  the  caveator  had  an 
interest  in  the  land  caveated.     He  knows  of  no  instance 
in  which  a  certificate  made  in  pursuance  of  a  warrant  of 
resurvey,  after  composition  money  paid,  by  a  person   not 
seized  of  the  original,  has  been  caveated  and  vacated  by  a 
person  not  having  an  interest  at  the  time  when  the  moncj 
-  paid,   but  has  understood  that  any  lands  taken  by  ft 
common  warrant,  special  warrant  or  warrant  of  r. 
•would  prevail  against  such  certificate,  but   he  cannot  refer 
to  any  particular  case.  According  to  his  understanding  and 
recollection,  the  payment  of  the  caution  money  was  not 
inade  a  question   where  the  party  obtaining  the  certifi- 
cate  had    no    original;  but    that  where  a   certificate    of 
junior  date,  regularly  made  and  compounded   on,   includ- 
ing the  same  land,  though  made  after  the  payment  of  the 
caution   money    upon    the    elder,   prevailed.     He   has  no 
recollection  of  any    particular   case,   but  he  always   un- 
derstood the  payment  of  composition  money  under  such 
circumstance-  \\a-au  unimportant  circumstance.     He  does 
not  recollect  any  case  when-  a  person  has  entered  a  caveat 
alleging  himself  sei/.ed  of  the  original,  on  which  tli<>  war- 
rant of  resurvey  issued  to  another  person.     Interro^dfi 
•Were  put  to  Mr.  Cuffa.'ian  by  the  plaintill'and  defendant,  to 
which  he  answered  in  the  manner  set  forth  in  Kilty's  Land 
Holders  rfasixtanli  456,  457  and  458. 

The  plaiiitifl'thcn  ollered  in  evidence  that  the  said  Cal- 
lahan,  entered  into  the  land  office,  as  a  clerk,  in  the  year 
1?C7,  that  at  that  time  in/Ham  Xtniart  was  the  chief 
clerk,  and  so  continued  till  the  year  1774,  when  Durld 
Sltiuirt  succeeded  him  and  continued  to  hold  that  office  un- 
til l77Tjthat  Saint  George  Prule  was  appointed  iv-Uirr 
of  that  office  the  21st  of  April  1777,  and  so  continued  till 
the  y«'.-i  r  177'.),  when  the  said  (Wuhan  was  appointed;  and 
that  during  the  time  Jf'illiam  Steuart  was  the  chief  clerk, 


OF  MARYLAND,  130 

Saint  George  Peak  was  principal  acting  clerk  under  him,        1807. 
and  also  under  David  Steuarl,  both  of  whom  had  several 
other  clerks  in  that  office.  ,.  And  the  parties,   by   consent, 
also  examined  the  Honourable  Alexander  Contee  Hanson, 
chancellor  of  the  state,  and  judge  of  the  land  office,  who 
deposed   and  answered    the  several  questions  propounded 
by  the  counsel  of  the  parties  as  they  are  set  forth  in  Kilty's 
Land  Holder's  Assistant,  445  to  436,  460  to  465.     Which 
evidence  was  delivered  by  the  register  of  the  land  office  for 
the  westerii  shore,  a,nd  by  the  Judge  of  that  office,  in  open 
court,  and    reduced    to  writing  by  them   respectively;  and 
the  testimony  by  them  so  respectively  given  was,  by  con- 
sent of  the  parties,  agreed  to  be  received,  to  operate  so  far 
as  the  same   is  legal  and  proper.     The  plaintiff'  also  read 
in  evidence  certain  proprietary  regulations  or  instructions. 
\_Which  see  in  Kilty's  Land  Holders  Jissitstant.~\     The  de- 
fendant then  offered  to  prove,  that  the  certificate  for  Part 
of  Wood's  Inclosure  had  never  been  returned  into  the  land 
office,  until   after  E.  Dorscy  had   obtained  his  patent  for 
The  Kesurvey  on  Part  of  Wood's  Lot,  to  wit,  till  after  the 
18th  of  February  1758;  that  E.  Dorset/,  and  those  claiming 
under  him,  have    regularly  paid   the  quit  rents  upon  the 
Avhole  of  The  Rcwrvc.y  on  Part  of  Wood's  Lot,  from  the 
18th  of  February  1758,,  to  tha  commencement  of.  the  revo- 
lutionary war  between  the  United  States  and  Great  Britain, 
and  have  ever  since  paid  the  public  taxes  and  county  levies 
airl  dues  thereon.     The  plaintiff  then  prayed  the  opinion, 
of  the  court,  and  their  direction  to  the  jury,  that   the  pa- 
tent which  issued  on  the  9th  of  September  1796,  to  Philip, 
Jiczin,  and  Charles  Hammond,  and  Richard  Hopkins,  and 
Hannah  his  wife,  will,  by  relation  to  the  date  of  the  certi- 
ficate of  survey,  be  effectual  to  pass  a  title  to  all  the  va* 
cant  land  included  therein,  notwithstanding  John  Howard 
had  no  right  or  estate  of,  in  and  to,  the  eighty-six  acres  of 
land  on  which  the  warrant  issued,  and  notwithstanding  the 
same  may  have  been  included  in  Edward  Dorsey's  resur- 
vey   aforesaid. 

Martin,  (Attorney  General,)  Key  ami  Johnson,  for  the 
plaintiff',  cited  18  Vin.  Alt.  tit.  Relation,  289,  290.  Gar- 
retson's  Lessee  vs.  Cole,  2  Harr.  fy  M-Hen.  459.  How- 
ard's Lessee  vs.  Cromwell,  I  Harr.  $•  Johns.  115.  Gib- 
son's Lessee  vs.  Smith,  Ibid.  253.  Lloyd  vs.  Gordon, 
2,  Harr.  §•  M'Hen.  254. 


440  CASES  IN  Tin-:  c  orivr  OF  APPEALS 


1807.  Sheriff.  Mti^tn  and  liurpcr,  for  the  de  Ictidatii,  cite<! 

L»//.  150.  a.  litnggoltTs  /.msec  vs  Mahll,  1  Hurr.  $•  Juhnt. 

3    r.  .•/,-•-.        .  ;».     5   ,'M.  .i!4.     j 

•fin/  r*  .'/4/i,  Ilnd  340.  .  M.  (3d  part.)    1  -; 

151,  152.    nit:  !m's  Lessee  v$   Cockry*  1  I  Inn:  .v  Mullen. 
234.      5  Afr.    28J.     £   J'ent.    89,    COO.      fV/i.   /.  .    ffjft 
10  Cofcf,  49.     //«//»'«   Lessee  r*  Polk,  1  7/arr.  ,,   ../•//• 
GG3.     5    lilk.    Com.  43.     2   /to//.   /, 

18  Ho.  .46.  tit.  If  Italian,  290,  pi.  8.  Ae/U't/J  r»  AW/r/u, 
2  /?t/rr.  1134.  S.  C.  I  H".  /^/A.  /.'c/?.  2  . 
''ifffit***.  Burr.  1902.  DoevsKoc,  Ibid  1971.  2  7,W/. 
«^6.  599.  Garrtlson  vs  Cole,  1  Harr.  «$•  Johns.  370.  I>cuir* 
Lessee  vs  IJcall,  Ibid  347.  j'clcr's  Lessee  ts  JJ/m/i.v,  4 
7/arr.  4'  M'Hcn.  423.  Cheney  vs  Ringgnld's  Lesser* 
(ante  87.)  J  Test's  Lessee  vs  Hughes,  1  Harr.  fy  Johns. 
13.  Lloyd  vs  Tilglmwn,  1  I/arr.  4-  M'Ucn.  85.. 

CHASE,  Cli.  J.  In  deciding  the  question  before  the  court, 
it  will  be  necessary  to  consider  the  efficient  qualities  of 
the  diflercnt  kinds  of  \varrants  \vUicli  are  used  to  take  up 
vacant  land,  cultivated  or  uncultivated. 

A  rr.mmoH  warrant  may  be  located  on  any  uncultivated 
land  in  the  cnuntv,  to  the  surveyor  of  v.lm  h  the  warrant 
is  directed,  if  no  person  has  acquired  a  right  of  pre-emp- 
tion to  such  vacant  land. 

A  special  it-arrant  is  used  to  a  Beet  cultivated  land, 
in  which  the  location  and  the  quantity  of  acres  arc  dc^i^- 
nated,  and  the  party  pays  t'oc  composition  monov  at  or  be- 
fore the  time  of  granting  the  warrant.  f<:r  the  number  of 
acres  so  directed.  The  s-Urvey  is  l!)"ii  m:;<!r  u  ilhin  the 

:;il  time  of  si;?  TJJO;  '.ilninp:  with  nioio  c 

litude  and  precision  the  land  thus  affected.     If  on  the  - 
vey  being  inade  it  appear;  to  the  par'y  that   he  has  not  as 
tnuch  land  as  he  paid  for,  he  can  rpp'y  the  surj  Ins  of  his 
;nt  to  afloct  any  vacant  land,  which  a  common  war- 
rant i«  competent  to  take,  whether  it  lies  in  conti^ti 
detached  from  tiic  land  ho  located  in    his  warrant* 

A  warrant  of  rr.tr/rrn/  is    taken  out  for  the   purru-.- 
resun-eyinp;  a  tract   or  parcel  of  land  in  which  the  party 
has  a  fee  simple.     In  virtue  of  such  warrant,  the  party 
acquires  a  right  of  pre-emption  in  all  the  adjoining  n 
ty,  and    if  he  makes  his  survey,  and  pv*  the  caution  mo- 
ney within  two  years  from  the  date  of  his  warrant,  he  has 
a  complete  equitable  interest  in  all  the  vacancy  include*! 
in  his  MI: 


OF  MARYLAND.  ill 

The  question  for  decision  now  occurs,  can  a  person,       18C7. 
who    takes  out  a  warrant  of  resurvey  without  having  a 
title   to  the  land   to  be  resurveyed,  acquire  a  title  in  the 
vacant  land  taken  up  and  included  in  such  resurvey? 

The  court  are  of  opinion,  that  such  warrant  will  ope- 
rate as  a  common  warrant,  and  affect  any  vacant  land 
which  a  common  warrant  was  competent  to  affect;  and 
that,  if  the  jury  find  the  facts  as  stated,  that  an  equitable 
interest  vested  in  John  Howard  on  the  7th  of  March 
1734,  when  the  composition  money  was  paid,  in  all  the 
vacancy  included  in  his  resurvey,  and  that  the  patent  ob- 
tained in  1796,  and  granted  to  Charles,  Philip,  and  Rezin 
Hammond*  and  Hannah  Hopkins,  wife  of  Richard  Hop- 
kins, will  operate  by  relation  to  the  date  of  the  certificate 
of  resurvey,  if  it  appears  to  the  jury  that  the  certificate  was 
returned  to  the  land  office  previous  to  the  time  when  Ed- 
ward Dorscy  obtained  his  grant,  which  is  stated  to  be  on, 
the  18th  i-f  February  1758.  That,  in  the  opinion  of  the 
court,  unless  that  fact  is  found  by  the  jury,  Edward  Dor- 
sey  was  a  fair  purchaser  without  notice  of  the  equitable 
interest  of  John  Howard,  and  the  grant  of  Edward  Dor- 
sey  cannot  be  over-reached  or  defeated  by  relation.  Tho 
defendant  exceptcd. 

5.  The  defendant  then  prayed  the  court  for  their  opinion    Thrronrt  «*«*,, 

f       *  eel  to  c!ir<  rt  the  jiv 

and  direction  to  the  jury,  that  if  they  were  satisfied  from  "v,*! !",',. fj^iimm 
the  evidence,  that  by  the  rules  and  regulations  of  the  land  f^^JfH^ 
office  in  the  year  1753,  and  since,  the  certificate  of  resur-^";l"fK^,1(!';)fres|1';.<I 
vey,  under  which  the  plaintiff'  now  claims,  was  liable  and  SI' T^ptatatM 
subject  to  be  vacated  upon  a  caveat,  notwithstanding  tNt feb?vBcat?a upon 
payment  of  the  composition  money  thereon,  if  J.  Hoicard,  "™"pM\\inn°  m,* 

f          i  ,i  iii  ...     ney  wiw  paid  there  i 

for  whom  the   same  was  made,  had  no  estate  or  seisin  m<>...  if  ,r.  H.  for 

...  .     vhnm    the      same 

the  original  tract,   so  resurveved,  and  that  upon  the  certf-  v^nmcu-,  i^d  n« 

.  e-t;iic  nr  seisin  in 

ficate  being  so  vacated,  the  vacant  land  ao  included  therein, t|ie  "r'£"1"1  tr»cr» 

'  'and thai  npr.n  the 

and  also  included  by  E.  Dorsey  in  his  certificate  of  re-  y^f,™'^"1;.** 
survey  called  The  Resurvey  on  Part  of  Wood's  Lot,  as  J^1-?,1;'1  ^ "^» 
above  stated,  if  the  last  certificate  was  compounded  on  in  "nin^ju'Iiorfei^ 
time,  and  in  all  other  respects  conformed  to  the  rules  and  £"',!;,, ,^if  oncofn- 
regulations  of  the  land  office,  might  legally,  properly  and  ^"Ji^t^i 
regularly,  be  granted  to  E.  Dorsey,  and  beinc;  so  granted,  ^m^&h" 
lhat  the  plaintiff  had  no  title  under  the  grant  for  Part  tflKS&f&m^i 
Wood's  Inclosnre  to  any  part  of  the  land  so  included  land''***" included 
•within  the  patent  to  E.  Horsey  for  The  Resitrvcy  on  JPirf  D'.'  egl*n 
of  Wood's  Lot. 


143  :x  TIIK  ronrr  OF 

1807.  OHVSK,  Oh.  J.  The  court    cannot  ^he    t!ie   opinion   and 

direction  pr.ned  for.     The  defendant  e\vepted. 

G.  The  plaintift    then  gave  in  evidence  the  patent  o^ 
•JL,4CtL£rpJrt  Ho01?*    £°li    granted    to  JOHJI/I   Hood  on    the    lioth  of 
M.uvh    1747,     '  I   ul   land.      Also  a    rpBTOJ 

m.'h.lihVr  mat^  thereon  by  //W,  a:ul  the  patent  granted  to  him  on 
••;;±"',;;  tlie  1st  of  June  1 750,  lor  1J40   a.  ,ud,  and   called 

the    MIU   tii-         ,.        /  i      ,  i 

,,  MI  fatal    •  •••  Hood  a  Lot;  and  that  t!ie  >a;uo  land.-,  are  truly  located  on 
iii.- the  plots.      Also,   that   the   rexmvey   called    lluod'a  Lot, 
a-  known  in  the  neighbourhood    by  the   name  of  / food's 
•i,a  i- 1  .  u,,,»u,,.r,  hiclosttrc  and  that  I  food's  Lot.  the  resurvev,  and  // 

.  lu  -    ' 

•  /ticlosurc,  were  one  and  the  same  tract  of  land.     Also  a 

ol   ibc     "iici      . 

«  riificate  of  resurvey  made  by  J.  Howard  of  I'urt  of 
H  ova's  /nclosure,  surveyed  on  the  5th  of  March  IT 
He  then  deduced  the  title  to  the  said  land  down  to  th« 
»f  thu  plaintiH'.  He  then  oil'ered  in  evidence  the 
deed  dated  the  -2lst  of  June  17JO,  from  J.  It  ood  to  ./. 
J/iiH-nrd,  for  94  acres  of  lund,  being  part  of  Wood's  Lot, 
and  called  I  food's  Inr.losure}  and  that  the  same  is  truly 
located  by  him  on  the  plots.  Also  a  deed  from  ,/.  ffood 
to  £.  Dorsey  for  a  part  of  Wood's  Lot,  dated  the  £0th  of 
June  17o4;  and  that  the  same  is  truly  loca'.'d  by  him  oiv 
the  plots.  He  then  produced,  and  ollered  to  read  in  «-»i- 
dence,  the  deed  from  J.  Howard  to  P.  Hammond,  dated 
the  £<th  of  September  17.33,  herein  before  mentioned  in 
the  firtt  bill  «»t  exception-.;  and  showed,  that  the  8G 
acres  of  land  therein  mentioned,  were  locaied  by  him  on 
the  plots,  bejnmnu;  at  the.  end  of  t!n»  :27ih  line  of  // ood'& 
J.»t,  as  located  by  him  at  black  u,  and  runninjr,  ^r.  to  the 
bejiinuinj;;  and  to  prove  that  to  be  the  true  location  thereof, 
he  offered  to  j;i\e  in  evidence  the  deed,  and  the  reMii\ 
made  by  E,  l)ort(y  on  the  18th  of  February  17.TS,  on  the 
land  MI  r.onveved  by  ./.  lYood  to  Darm-y,  and  calleil  The. 
Part  of  Hoods  Lol:  and  that  the  resurvey  is 
truly  located  by  him  on  the  plots:  and  tiut  the  foth  line 
of  that  i  -trikes  the  end  of  the  third  line  of  the 

8G  acres,  ami  then  runs  three  line-*  'hereof  icver>ed  to  tho 
i   the  86  acres,  and  thence  to  it>  be^innins;  at 
black  //,  «-x(  ludin^  thp  80  acre*.      lit-    I  ".-red  to 

prove,  t  the  death  of  A'.  /i»r.->ei/,  tin-  land  contain- 

ed in  ihe  last  mv:  -ion-'d  i  led 

to  '/'.  L>  i-.-.ij  iu'.s  ln,ir.     Al>o  thai  the  devisees  of  /•".  huin- 


OF  MARYLAND.  143 

fnoml,  the  assignee,  claimed  the  land  contained  in  the  cei1-        1807. 
tilicate,  so  assigned,  as  personal  property,  and  that  C.  Ham- 
mond, his  heir,   claimed  the  same  as  land  not  devised  by 
the  will.     Also,  that  a  caveat  was  entered  by  the  devisees 
against  the  issuing  of  a  patent  to  6.  Hammond  on  the  cer- 
tificate, and  which  caveat  was  endorsed  and  noted  on  the 
certificate  on  the  30th  of  January  1772.  ,    He  also  offered 
in  evidence*   a  deed  dated  the   17th  of  November  1779, 
from  Philip  and  Rezin,  two  of  the  devisees,  to   Matthias 
hammond,  one  other  of  the  devisees,  for  their  interest  in 
the  two  tracts  mentioned  in  the  deed   from  J.  Howard  in 
P.  Hammond,  their  father,   and  in  which  the  86  acres  are 
described    by  the  following  metes   and  bounds,    to  wit: 
"Beginning  at  the   end   of  the  27th  course  of  the  land 
called  Wood's  Inclosure,  and  vanning*'  &c.  and  that  the 
same  are   the  beginning,   courses,   metes  and  bounds,  by 
which  the   plaintiff  hath,  located  the  86  acres  on  the  plots. 
Also  a  deed  dated  the    17th  of  November  1779  from  M. 
JIammond  to  B.   Warfidd,  conveying  all  his  right  and  in- 
terest to  the  two  parcels   of  land  mentioned  in  the  deed 
from  J.  Howard  to  P.  Hammond  to  be  conveyed,  and  in 
that  deed  the  86  acres  of  land  are  described  as  contained 
within  the  same  metes  and  bounds  and  beginning  at  the 
same   place.      And  that   War*ield    did,    in   consequence 
of  that    deed,   enter    upon   and    possess    the  parcels    of 
land    therein    mentioned,     and    that    afterwards,   in  the 
year  1790,  he   sold    his  interest   and  right    in    the  two 
parcels  of  land  to  T.  Dorsey,  and  gave  up  the  two  parcels 
of  land  to  T.  Dorsey.     Also  an  original  deed,   dated  the 
14th  of  March  1772,   from  C.  Hammond,  heir   at   law  of 
P.  Hammond,  to  his  brother  J.  Hammond,  one  of  the  de- 
visees,  for  his  interest   and   estate  in  the  two  parcels  of 
land.     And  that J.  Hammond,  in  his  life-time,  sold  all  his 
interest  in  the  two  parcels  of  land  to  7'.  Dorsey;  that  both 
C.  &  •/.  Hammond  departed  this   life  antecedent  to  the 
22d  of  June  1784,   and  that    It.  Hammond  was  the  son 
and  heir   of  /.  Hammond;   and  that  on  the  22d  of  June 
1784,  W.  Hammond,  in  consideration   of  the  payment  to 
him  by  T.  Dorsey  of  the  sum  of  £23  7  6,  the  balance  of 
the  purchase  money  then  due  from  T.  Dorsey,   under  the 
sale  by  his  father,   did  execute  a  deed  to  T.  Dorsry,  con- 
veying to  him  all  his  right  and  interest  in  the   two  parcels 
of  land.     Aod  that  1.  Dorsey,  so  being  entitled,  as  heir 


i   LSESIN  THE  COURT  OF  APPEALS 

07.        ht  law,  to  the  lands  contained  in  the  reMir\ey  made  by  -E. 

//,  ami  having  so  purchased  the  two  parcels  of  land 
mentioned  in  llic  deed  t'roin  J.  Howard  to  the  first  men- 
tioned P.  Hammond,  afterwards,  on  the  £7th  of  Septem- 
ber 1784,  entered  into  a  contract  in  writing,  under  seal, 
v.  itlt  Thomas  t'.^hcr,  for  the  sale  of  certain  iamK  and 
among  others,  the  80  acres,  and  that  the  Mi  acres  in  that 
contract  are  described  as  being  purchased  by  /'.  / 
in  his  life-time,  on  the  i'th  of  November  1731,  of  a  certain 
J.  Howardy  and  as  liaving  been  bought  by  T.  Dot 
the  devisees  of  P.  Hammond,  and  as  having  been  sold  by 
J.  Howard  to  P.  Hammond,  and  purchased  bv  T.  Ihmr.yi 
and  having  proved  the  execution  of  t!ic  contract,  offered  to 
read  the  same  in  evidence.  He  also  o  Re  red  to  uive  in 
eudence  a  deeil  from  71.  Dorsey  to  T.  Usher,  dated  the 
10th  of  February  1785,  for  the  several  tracts  of  lands  in 
the  contract  mentioned;  and  that  the  courses,  lines  and 
metes,  mentioned  in  the  deed,  are  truly  located  on  the 
j)lots  by  the  plaintiff,  and  do  include  the  whole  of  the  86 
acres  as  located  bv  tin?  plaintiff,  and  that  one  line  thereof 

•s  the  second  line  of  the  86  acres,  as  located  by  the 
plaintiff,  ar.d  runs  thence  to  the  end  thereof,  then  with  the 
3d,  4th,  5th,  and  6th  lines  of  the  plaintiffs'  location  of  the 
86  acres,  and  then  with  the  given  line»  o  its  beginning 
at  black  a,  and  thence  to  black  //,  the  beginning  of  the 
deed;  and  that  in  the  deed  there  was  a  covenant  of  war- 
rant v  as  to  the  parts  of  the  n-survcy  on  U'ontFt  Lot  cnn- 

!  in  the   said  deed,  against  7'.  Horsey,  his  heirs  ;:nd 

MS,  and  against  J.  Howard,  and  his  heirs   and   ;:- 
only.     Also  a  deed  from  T.  Dorscy  to  T.  t'.v/ifr,  dated  the 
£7th  of  May  1785,  for  the  same  lands,  describing  tin  i;>  in 
the  came  manner,  but  containing  a  general  warranty.   And 
that  T.  To.'.'n    did,  by  \irtueof  the   deeds   to   him, 
into  and  take  possession  of  the  lands  so  conveyed    I 
JJoraey,  and  among  other  parts  thereof,  of  the  bG  acres,  so 
bold  to  him  by  T.  Doracy,  and  so  located,  and  made  a  re- 
survey   thereon,   and  returned  a  certificate   of  resurvey, 
dated  the  12th  of  June  1785,  called  I'xher's  Freehold,  and 
that  the  same  is  truly  located  on  the  plots  by  the  plaintiff; 
and   that  the  lines  thereof  include   the   whole  of  the   86 
acres,  striking  tl.e  >ame  at  the   same  place,    and    running 
with  it  in  the  same  manner  as  the  t!ced   IV«  in    T.  Dorsey 
to  7'.   I  Jtcr,  aud  that  7'.  i  sAcr  was  possessed  of  the  land 


OF  MARYLAND.  14.3 

so  contained  in  his  certificate,  until  his  death,  which  hap-  1807. 
pened  about  January  1780.  That  T.  Usher,  by*  his  will 
appointed  T  U,  .V  ,7,  J  U,  &  J  I),  executors  thereof, 
and  did  devise,  direct,  and  empower  them,  or  the  survivors 
or  survivor  of  them,  to  make  sale  of  all  and  every  part  of 
his  real  estate,  and  to  execute  deeds  for  the  same,  to  the 
purchasers  thereof,  in  fee  simple;  and  that  the  executors 
did  take  upon  themselves  the  execution  of  the  will,  and 
obtained,  in  due  form  of  law,  letters  tescamentary.  That 
after  the  death  of  T.  Usher,  one  Jo/in  Salmon  filed  a  bill 
in  the  court  of  chancery  against  the  devisees  and  execu- 
tors of  T.  Usher,  to  compel  a  sale  of  his  real  estate  for 
the  payment  of  his  debts;  that  it  was  so  proceeded  in  that 
suit,  that  a  decree  was  made  for  the  sale  thereof;  and  that 
by  virtue  of  that  decree,  the  said  lands  were  sold  to 
divers  persons,  as  stated  in  a  report  thereof  returned  to 
the  court  of  chancery,  and  by  the  chancellor  approved, 
ratified  and  confirmed.  That  the  part  of  the  land  located 
by  the  defendant  as  his  defence,  was  purchased  by  Catharine 
Usher,  widow  of  T,  Uvher,  and  by  her  sold  to  the  defen- 
dant, who  entered  into  and  possessed  (he  same  under  that 
sale.  That  it  was  agreed  that  the  patent  upon  the  certifi- 
cate so  returned  by  T.  Usher  should,  for  convenience,  be 
granted  to  the  defendant,  and  that  he  should  then  convey 
to  the  several  purchasers  under  the  decree,  the  respective 
parts  respectively  by  them  purchased;  that  the  patent  was 
so  issued,  and  conveyances  so  made,  and  that  the  respec- 
tive purchasers  of  -the  land,  so  contained  in  the  certificate 
returned  by  T.  Usher,  did  enter  upon  and  possess  the 
parts  thereof  by  them  respectively  purchased,  by  virtue  of 
the  title  of  T.  Usher,  and  the  saies  under  the  decree. 
And  that  after  the  death  of  T.  Usher,  his  executors  claimed 
the  whole  land  contained  in  the  certificate,  so  by  him  re- 
turned, under  his  title.  Also  a  deed  from  Joseph  fl  ooJ, 
the  patentee,  to  Jonathan  Hood,  his  son,  but  not  his  heir 
at  law,  dated  the  4th  of  March  1780,  for  "all  that  tract  or 
parcel  of  land,  being  part  of  a  tract  called  The  Resurvey 
on  Wood's  Lot,  beginning  at  the  end  of  the  27th  line  of 
the  said  resurvey  on  Wood's  Lot,  and  running,"  &c.  "con- 
taining 153  acres  of  land,"  &c.  And  that  the  153  acres 
included  the  86  acres  of  land  mentioned  in  the  deed  from 
J.  Howard  to  P.  Hammond,  and  are  the  same  86  acres  of 
land  located  by  the  plaintiff"  as  the  86  acres  sold  to  T. 
VOL.  ii.  19 


CAM:-  IN  THE  cornr  OF  APPEALS 

1807.  Utherby  T.  Dorary.  Also  a  deed,  dated  Oth  May  17R6,- 
bj  Jonathan  I  food,  executed  in  due  form  of  law,  to  the 
executors  of  T.  I'shcr,  to  confirm  their  title  to  the  80 
acres,  in  \\hich  it  i-  e\pc>sed,  *'lhat  doubts  had  arisen  in 
regard  to  the  title  of  86  acre*.  pan  ot'  a  tract  of  land  suld 
by  T.  Dorsey  to  the  >u;d  '/'.  /".-/.•<  r,"*  and  that  in  con- 
sequence  Jonathan  Jfood  conveyed  to  the  executory  of  7'. 
fWirr,  all  his  right  and  title  to  the  80  acres,  to  begin  at 
the  end  of  the  27th  course  of  Ifootfs  Jnctomtrc,  and  run- 
thrncc,&c.  That  the  courses  and  beginning,  so  de- 
scribed by  the  heir  of  Joseph  Jfood,  under  whom  J.  Inward 
claimed  the  86  acres,  are  exactly  correspondent  \\ith  the 
location  of  the  86  acres  made  on  the  plots  by  the  plaintiff. 
That  before  and  at  the  time  when  the  said  dot  d  v.  a-  exe- 
cuted,  the  executors  were  possessed  of  the  86  acres,  ac- 
cording to  the  location  under  the  title  of  T.  Usher,  and 
that  the  86  acres  were  the  same  86  acres  mentioned  in 
the  deed  from  J.  Howard  to  P.  Hammond,  and  which 
had  thus  been  conveyed  to  P.  Hammond,  and  which  had 
thus  been  conveyed  to  Ifarfield,  and  to  T.  Dorsey,  and  on 
which  J.  Howard  made  his  rcsurvey;  and  that  no  per- 
son whatever  has  had  any  possession  of  the  86  acres, 
located  as  the  plaintiff  hath  located  thfe  same,  except 
J.  Howard,  and  those  claiming  from  and  under  him, 
Evidence  was  then  offered,  that  no  deed  could  be  found  on 
record  from  Joseph  ff'ood  to  J.  hoicard  for  the  86  acres. 

Mason,  Shoajf,  and  Harper,  for  the  defendant,  objected 
to  the  reading  of  the  deed  from  J.  Howard  to  P.  Ham- 
mond, dated  the  27th  of  September  1753,  to  prove  the  lo- 
cation of  the  86  acres.  They  cited  Co.  Lilt.  352.  i. 
3  Com.  Dig.  (E.  4.)  274. 

Martin,  (Attorney  General,)  Key  and  Johnson,  contra, 
cited  (lUlin^s  Lessee  vs  Hn.'l,  1  l/arr.  <$•  Johns.  14. 
The  Karl  «[  SUM*  vs  Temple  ei  al.  1  LJ.  Jluym.  311; 
and  GUb.  L.  E.  100. 


CHASE,  Ch.  J.  The  deed  from  J.  Howard  to  P. 
mond  of  the  27th  of  September  1753,  does  not  sufficiently 
specify  the  land,  being  for  80  acres,  and  94  acres,  par; 

Inclosttre,    "convoyed   by  Joseph    Wood  to  John 
:n  appears  by  deed  recorded  in  Frederick  coun- 
'•'  but  the  deed  thus  referred  to  canuot  b«  found.     T 


OF  MARYLAND.  147 

deed  docs   not  define  the  86  acres  by  any  courses  or  dis- 
fauces,  there   is,  therefore,  nothing  in  it  whereby  any  lo- 
catable  land  can  be  convened,  and  of  course   passes   no- 
thing, and  passing  nothing  it  cannot  be  evidence.     Nothing 
but   the  deed  itself  can   prove  the  location  of  the  land  re- 
cited in  the  deed  now  ottered  to  be  read  to  the  jury.    The 
court  are  therefore  of  opinion,  that  the  deed  from  /.  How- 
ard to  P.  Hammond  is  not  legal  evidence  to  show  title  in 
Hammond  in   the  86  acres  of  land,  part  of  Wood's  Inclo- 
sure,  as  located  on  the  plots  by  the  plaintiff,  or  to  support 
his  location  of  the  same,  without  producing  the  deed  from 
Joseph  Wood  to  J.  Howard,  to  which  the   deed  from  J. 
Howard  to  Hammond  doth  refer,  to  ascertain  and  identify 
the  86  acres  intended  to  pass  by  the  same;  and  that  the 
deed  is  inoperative  to  pass  the  same,  without  producing 
that  deed.     The  court  refuse  therefore  to  suffer  the  same^ 
to  be  read  to  the  jury, 

The  court  are  also  of  opinion,  that  the  facts  and  circum* 
stances,  stated  by  the  plaintiff,  are  inadmissible  to  prove 
the  location  of  the  86  acres,  and  the  court  refuse  to  suffer 
the-same  to  be  read  to  the  jury  for  that  purpose,  or  to  show 
title  in  P.  Hammond  in  the  86  acres  of  land.  The  plain-" 
tiff  excepted, 

7.   The  plaintiff  then,  in  order  further  to  prove  that  J.  ^^ret^d 
If  ood  did  execute  to  J.  Howard  some  conveyance  for  the  J^,,!"™*  u.T'c 
86  acres  of  land,  or  some   bond  or  contract  for  the  con-  byVheRmet^a 
veying  to  Howqrd  the  86  acres,  by  the   same  metes  and  catc"ido'n8ihrapi 
bounds,  and  beginning  as  located  by  the  plaintiff,  offered  jj»^ver  *><*» 
to  give  in  evidence  the  deed  from  Howard  to  P.  Hammond, 
and   the   resurvey  made   by   E.  Dorsey  on   the  18th  of 
February  1758,  on  the  land  so  conveyed  by  Wood  to  Dor* 
set/,  and  that  the  resurvey  is  truly  located,  &.Q. 

CHASE,  Ch.  J.  delivered  the  same  opinion  as  that  giyeiji 
on  the  prayer  in  the  preceding  bill  of  exceptions,  and  then, 
proceeded  as  follows;  The  court  are  also  of  opinion,  that 
the  facts  and  circumstances,  stated  by  the  plaintiff,  are 
inadmissible  to  prove,  that  Joseph  Wood  did  execute  to 
John  Howard  a  conveyance  for  the  86  acres  of  land,  or  a 
bond,  or  contract,  for  the  conveying  to  Howard  the  86 
acres  by  the  same  metes  and  bounds,  and  beginning  as  lo- 
cated by  the  plaintiff;  and  do  accordingly  refuse  tu  ail*w 


41s  i   ISES  IN  TflB  COURT  OIT'AFPEALS 

the  same  to  be  given  in  evidence  to  ihe  jury.     The  pluin- 
tiil'excepteil. 

8.  The  plaintiff  then  prayed  the  opinion  and  direction 
court  to  the  jut  v,  that  unless  they  are  .vatiriied.  1'unu 


I  iff  hat    nuutr  hut 

OMT  'OOII..H   ..n  the  evidence,  of   the  true  position  of  the  beginning  of  the 

tar  plouodkr  be- 

rmnii.e    -r   ti»  •  flf,  acres  of  land,  on  which  the    rcsurvey  calltd   /'art  Of 

I»nd  f'*  which  ih.  <f  J 

'•  U'owl**  Incloaitre  was   made,  or  the  bejnnninj;  of  tliat  re- 

ami   ihn  i>  • 

n^teiuur  fi'V»  surv'\v«  :UK'  f°r  which  land  this  suit  is  bioujjhl,  that  thui 
•Kii'lr*ihffef^t  th«y  A«t«  a  right,  and  are  bound  bylaw,  to  a.-u-nnin  a 
t>7"h'mhal  ioCBlwl  place  of  beginning,  by  reversing  the  first  nine  coui> 

iiTr'TJc*  that   leMim-y  without  variation,  or  vitli  such  variation  as 
i**10*!'  •ih  ,ui'i  they  think  right,  from  the  place  marked  u  on  the  plots,  at 
"n^uneantvt  red  figures  27,  and   rod    /'//'/,,  and   that  unless  the\ 
ihtir    !.»i,r"'b."t  satisfied,  from  the  evidence,  of  the  place  where  the  104th 

lull*!  flint  I    III.   i  l,c 

o»  n.c  pi«iniiif\,  line  of  the  resurvey  calls  for,  that  then  the  true  location  of 

if  <h<y    find     fur  f 

biin«  the  land    is  to  be    ascertained  by  running  the  lines  of  the 

resurvey  from  the  place  marked  on  the  plots  at  </,  without 
or  with  such  variation  as  they  think  proper,  until  the  ^iven 
line  shall  intersect  and  close  with  the  beginning  so  found. 
by  reversing  as  aforesaid.  And  that  the  jury  are  by  laxv 
competent  to  draw  lines  on  the  plots,  to  ascertain  the  true 
position  of  the  land  in  the  declaration  mentioned,  or  to 
make  such  description  thereof  in  their  verdict,  as  shall  fix 
the  true  position  of  the  same,  notwithstanding  there  are  no 
such  lines  on  the  plots  at  this  time  located.  And  in  • 
they  have  evidence,  to  satisfy  their  iiiinds,  of  the  tn 
ginal  beginning  of  the  resurvey  r.iade  by  //  ouJ,  and  for 
which  this  suit  is  brought,  and  that  the  s;:me  i«  a;  ;i  j.iare 
different  from  what  is  located  by  either  the  plaintiff  or  the 
defendant,  that  then  they  are  to  begin  at  the  place  so  prov- 
ed, and  run  the  first  eight  courses  of  the  grant,  without  or 
with  such  variation  as  they  think  most  proper,  tn  ( 
pond  with  the  original  location;  and  that  the  ninth  course 
must  be  run  to  its  call  at  a,  red  "27.  red  /'  U  f.;  and  in 
case  they  have  not  evidence  to  establish  the  place  called 
for  at  the  termination  of  the  lU-lth  line,  that  then  they 
liavc  a  right,  and  are  bound,  to  locate  the  lines  from  ••. 
witli  or  without  variation,  as  they  tl.'u.k  proper,  until  the 
D  line  shall  intersect  and  close  with  the  phu<-  of  be- 
ginning. And  that  the  jury  are  by  law  competent  to 
draw  lines  on  the  plot*  to  ascertain  the  tnn-  p'.>i'i»,n  of  ihe 
land,  or  to  make  such  description  thereof  in  their  verdir.' 


OF  MARYLAND.  119 

us  shall  fix  the  true  position  of  the  land,  notwithstanding        1807. 

there  are   no  such  lines  on  the  plots  at  this  time  located. 

And  on  fixing  such  location  the  plaintiff  is  entitled  to  their 

verdict  for  ail  such  land  as  is  included  within  their  finding, 

and  which  is  also  contained  in  the  locations  of  the  plaintiff 

•if  J'art  of  J  food's  Inclosure,  and  for  which  the  defendant 

hath  taken  defence. 

JMartin,  (Attorney  General,)  and  AY?/,  for  the  plaintiff, 
cited  the  act  of  November  1781,  ch.  20,  a  14,  and  Carrol/, 
el  ul.  Lessee  vs  L.  <y  .V.  Norwood,  1  flarr.  fy  Johns.  ICC. 

Khaajf,  for  the  defendant,  cited  JKirkp  a  (rick's  Lessee  rs 
A't/gci,  1  Ilarr.  <$'  Johns.  £98,  and  VVeLb'a  Leases  va 
Heard,  Ibid  349. 

CH^SE,  Ch.  J.  The  court  cannot  give  the  direction  pray- 
ed on  the  part  of  the  plaintiff,  inasmuch  as  the  r  laiiuiff 
lias  not  made  any  location  on  the  plots  to  warrant  the 
court  in  directirg  the  jury  to  find  a  beginning  for  the 
plaintiff,  different  from  that  located  at  the  letter  G,  as  the 
beginning  of  Part  of  Wood's  In  closure,  the  plaintiff  having 
made  only  one  locution  of  the  beginning  of  that  tract  of 
land,  and  the  same  having  been  counterlocated  by  the  de- 
fendant. 

'J  he  chief  judge  said,  that  the  plaintiff  must  make  such 
locations  as  will  suit  his  case.  He  has  made  two  from 
the  same  beginning,  one  of  which  the  jury  must  find,  if 
they  dnd  for  the  plaintiff.  It  is  customary,  in  order  to 
meet  the  variation  of  the  compass,  to  make  sundry  loca- 
tions, so  as  to  have  one  which  the  jury  may  find.  The 
plaintiff  relies  upon  his  locations;  and  the  jury  cannot 
find  a  location  of  their  own,  but  must  find  some  one  of 
tlse  locations  made  by  the  plaintiff,  if  they  iind  for  the 
plaintiff.  The  plaintiff  excepted. 

On  motion  of  the  plaintiff's  counsel,  leave  was  giveh 
by  the  court  to  withdraw  a  juror,  for  the  purpose  of  amend- 
ing the  plots;  but  the  plots  were  amended  by  con.-ent  of 
the  parlies  without  withdrawing  a  juror,  and  the  trial 
continued. 

9.   The   plaintiff  then  prayed  the  opinion  of  the  court.    If'iipi>ojr'nnui!c 
and  their  direction   to  the  jury,    that  if  the   besnnnino-  of'5  '"*'•  "  »»'>>«<t 

he  [no\e<'.  .hen  .i; 

J.  Howard's   resurvey  is  lost,  or  cannot  be   proved,   then  is "'  '*'  f"1""1  h>" 

itvfisi;  ;j  il.e  liiu-j 

the  beginning  of  the  same  js  to  be  found  by  reversing  the  j',',,',^,,  '^  t^l'">t 
lines  from   the  first  known  and  established  boundary;  and  bi'-heU  lLl:'-Ji".v- 


('  ASES  1  N  'I  UK  COURT  OF  API'KA  L> 

that  the  holders  under  that  resuivoy  are  entitled  to  all  t'n« 
laud  \\itiiiii  that  res-.irvey  li.  rated  from  such  beginning  so 
found,  unless  taken  away  by  elder  surveys. 

THE  COURT  gave  the  direction  1o  the  jury  as  prayed. 
Verdict  and  judgment  for  the  defendant,  and  the  plain- 
tiff appealed  to  this  court. 

The  cause  was  argued  at  the  last  term  before  Tu.cn- 
M  \\.  NICHOLSON,  and  GAMT,  J.  upon  the  bills  of  » 
lions  taken  by  the  plaintift'  in  the  couit  below,  being  tlje 
t-iii,  nh  and  Blh,  as  herein  before  stated  aud  numbered. 


/,  and  Johnson  (Attorney  General,)  for  the  Appel- 
lant, in  their  arguments  stated,  that  under  the  tilth  and 
seventh  bills  of  exceptions  two  questions  occurred  —  I. 
"Whether  I/oirard  had  title  to  the  80  acres  of  land  upon. 
which  his  resurvey  was  made?  And  2.  "Whether  suf- 
ficient evidence  was  offered  to  the  jury  to  establish  the  lo- 
cation of  the  86  acres  on  the  plots:  '1  hey  contended  that 
there  was  sufficient  evidence  for  the  court  to  direct  the 
jury  to  presume  a  deed  from  Wood  to  Howard.  At  all 
events  that  the  evidence  ought  to  have  been  suffered  to  go 
to  the  jury  for  them  to  judge  \\hether  or  not  such  a  dec»J 
had  ever  been  executed.  They  cited  (Jitb.  L.  E.  98. 
Gill  ing's  Leaxee  r.v.  Hall,  \  llarr.  $•  Johns.  14. 

On  the  tii^/ith  bill  of  exccptioi  s  they  contended,  that  th^ 
jury  had  a  rij;ht  to  dr;n\  lines  on  the  plot?,  or  in  any  other 
manner  they  mi^ht  think  proper,  in  order  to  find  the  be- 
ginning of  the  land  in  contro\ersy,  although  the  beginniiiu; 
so  found  might  be  at  a  different  place  from  that  located  on 
ihe  plots  by  either  of  the  jariic*.  'I  hey  tiled  JJuriKtl/'s 
-  i-s.  Goodwin,  1  ttarr.  «.V  Johns.  282.  C'urrul/  <t 
ul.  Lessee  vs.  Xvrwood,  Ibid  186. 


Har].rr,  for  the  Appellee,  in  their  arguments 
on  the  xisth  ai.d  •••nfjit/t  bills  of  exi-cpiion.-,  died  /<///:,//. 
7-4.  (illb.  //.  E.  09.  Morris's  Lessee  vs.  l'<mdcru>.  1 
J)ttll.  J.(T>.  C7.  C'citi.  Li«.  tit.  £rii.intr.  (IJ  5.)  SinilJi 
ts.  The  J'(sln;,  cvc.  in  this  court  on  the  K.  S. 

On  the  e:.':lilli  bill  <  f  excepiion^  they  in^i^ted  that  the 
plaintiff  could  not  give  evidence  thai  the  beginning  of  the 
land,  for  which  he  brought  his  ejectment,  was  at  a  difl'n- 
rnt  place  than  tli^t  claimed  by  his  litalions  ou  the  pluU. 


OF  MARYLAND.  151 

They  cited   Kirkpaf  rick's  Lessee  vs.  A'vgrr,    1   Han.   Sf       1807. 
Johns.    289.       H'ebb's    Lessee    vs.    Jirtml,     Ibid    349. 
Iluvfies's  Lessee  vs.  Howard,  decided  iu  Haiti-more  county 
court,  and  now  on  appeal  in  this  court. 

Curia  adv.  vult. 

THE  COURT,  at  this  term,  decided  that  there  was  no 
error  in  the  opinions  given  by  the  general  court  in  either 
of  the  bills  of  exceptions  taken  on  the  part  of  the  plaintiff 
below. 

NICHOLSOX,  J.  concurred,  except  as  to  the  opinion 
given  in  the  eighth  bill  of  exceptions,  and  from  that 
opiuion  he  dissented, 

JUDGMENT   AFFIRMED. 


HAMMOND,  et  al.  Lessee,  vs  WARFIELD.  DECEMBER. 

APPEAL  from  the  General  Court.     Ejectment  for  a  tract    The  courts  win 
of  land  called  Part  of  TPood's  Indosure.  lyins  in  Frederick  the  n>i«   of  the 

,    /,'  ,  la  n.loffi  re  as  fbrm- 

COUnty,  containing  2286  acres.      I  he  defendant,  (now  ap-  ta».n««toiu*ii*< 

°  v         .        '       lative  to  property, 

pellee,)  took  defence  on  warrant,  under  the  general  issue  sii<i  win  direct  the 

jury  as  to  the  taw 

plea,  for  a  tract  of  land  called  The  Resurvey  on  Hobson-s  "^"R  liom  »uch 


The  rules  of  the 
I  land  office  cannot 
be  proved  by  wit- 

nesses; they  are  to  be  found  on  the  records  of  that  office,  and  in  the  proclamation^,  of  the  proprie- 
tary 

The  usage  and  practice  of  the  land  office  must  be  proved  by  the  adjudications  of  the  judges  of 
that  nilice,  and  nut  bv  th.-  opinions  of  witnesses  as  to  what  wa.  thar  usage  and  practice 

Where  a  wairant  of  re»urvey,  taken  out  by  J  II,  who  w:is  not  s  -iz.ed  of  the  original  tract  resnrveyed, 
was  located  on  vacant  l;md  not  crintiguou*  to  such  oritf'intl  tract,  his  tyrant  therefor  will  operate  by 
relation  to  the  date  of  the  certificate  of  resurvev,  it'  the  eoinposirtmt  money  was  paid  in  time,  and  !he 
certificate  of  resurvey  was  returned  to  and  in  the  land  office.  when  a  warrant  ul  resurvey  i>sued  i« 
J  C  t.)  affect  the  vacant  1-tnd  included  in  J  H's  certificate;  or  if  the  composition  money  was  not  paid 
in  time  by  J  C  on  liis  resurvey,  and  J  H's  certificate  was  in  the  oJHce  when  J  C  did  compound,  the 
grant  to  J  H  wi'l  iv'ate  to  the  dale  of  the  certificate. 

But  if  J  H's  certificate  was  not  in  the  ofllce  when  the  warrant  issued  to  J  C,  and  J  C  compounded 
on  lniiesurvey  m  time;  or  if  J  H's  cerlificite  wrs  not  in  ihe  olice  when  .1  C  did  co  iip.iniiil,  though 
not  in  time,  anil  obtained  his  i;nitif  ,  then  J  C  was  a  fair  p  jre'i  assT  for  a  valuable  consideration  wilhuut 
liinieeof  the  e<|!iit;tlile  interest  of  J  H,  aii'l  the  (jrant  to  .1  C  cannot  be  overreached  by  le'ntion, 

If  vacant  lantl,  not  contiguous  to  t!ie  ori-jf'.n'il  ti-act  reiiirvevd,  i<  included  in  the  certificate  of  re- 
survey,  it  is  nol  legal  notice  of  the  location  o}'  the.  warrant,  until  the  certificate,  is  returned  to  iln- 
Jand  office 

If  an  assiirned  Ir.nd  warrant  was  applied  in  time  to  the  pnynient  of  cnmp  >sition  money  on  vacnnt 
rand  inchuled  in  a  certificate  of  resurvey,  such  application  will  bu  e<i<iivaicnt  to  tiie  payment  of  »<i 
much  inoney 

The  jury  are  to  find  when  the  composition  mnney  was  paid  on  a  certificate  of  survey. 

A  naked  possession.  (cosse<sion  without  ri^ht.)  i*  adversary  only  to  lite  extent  of  actual  enclosures. 

"Where  the  plainti  if  's  grant  operated  l>y  re!:t'  ion  to  the  elite  of  :he  certifi.-nte,  ami  ovi  n-e.-ichcd  lite 
defendant's  elder  grant  for  the  same  land,  the  entry  of  the  i;r:intee,  under  siii-h  eld-.-r  ^rant,  and  ilie 
posiessinn  by  him,  and  those  clai.ning  under  linn,  w  is  without  ri?ht,  and  cannot  bar  the  |>!aini,tt''s 
recovery,  unletsiuvh  MtMunoaWM  bj^  actual  enclosures  for  20  years  prior  to  the  bringing  the  eject- 
ment 

To  entitle  a  party  to  the  benefit  of  the  relation  of  his  grant  to  the  certificate,  it  i«  incumbent  on  him 
to  slit-*  «n  equity;  and  the  producing  copies  under  seal  of  ihe  warrant,  certificate  and  grant,  u  uut 
sufficient  to  entitle  him  lo  such  lienctit. 

'Ihe  time  when  a  certificate  was  returned  to  the.lanJ  office,  ij  a  matter  of  fact  deteriniuablc  by  the 
jury. 

A  petition  to  the  judges  of  the  land  office  by  T  D,  with  certain  alterations  made  therein  in  the  hnnd- 
wriiingofa  clerk  in  that  otlk-c,  (now  doad,)  stating  when  a  certificate  win  returned,  not  prrniilieH 
to  be  given  in  evidence,  ns  a  circumstance  to  prove  at  whit  tin.e  ihe  certificate  was  returned,  or  to 
prove  it  was  returned  before  a  certain  pert.-id,  as  the  party  against  whom  the  ItMimoay  is  uilclided  lo 
'optoote  d«es  uut  tlenve  any  iutvtest  iiitUo  Juud  in  i^ucatUiq  u;i.Ur  1"  J). 


,:  ftl    ;.    . 

1.    V    i  May  tei,  Vlendatit  pro- 

duced the  honourable  *1fej:<inilcr  Contti  //  .luollor. 

and  ju<lge  of  the  land  office  for  the  western  shore,  and 
proposed  to  him  the  following  question,  to  wit:  "If  a  cer- 
tificate on  a  warrant  of  resurvey  is  returned,  in  which  va- 
cant land  is  included,  not  contiguous  to  the  original,  but 
separated  by  elder  survey.  ;.'nl  the  person  returning  the 
said  certificate  has  paid  the  caution  f  >r  the  land  t::>t  conti- 
guous to  the  original,  and  no  patent  has  issued,  and  a  man 
by  a  warrant  taken  out  after  the  payment  of  the  said  cau- 
<;on  money,  returns  a  certificate  including  the  vacancy  com- 
prehended in  the  certificate  of  the  survey  which  is  not  con- 
ns to  the  original,  and  pays  the  caution  money;  if  the 
above  fa<  to  the  judges  of  the  land  office,  would 

not,  by  the  laws  of  the  land  office,  the  former  certificate 
be  vacated  as   to  the  vacancy  not  contiguous,  and  patent 
to  the  younger  certificate?''     But  tin;  counsel  for  the 
plaintiff  objected  to  the  question  put  to  the  wi;; 

.:.  The  courts  of  justice  will  take  notice  of 
the  rules  of  the  land  office  as  forming  regulations  rcL 
to  properly,  and  will  direct  the  jury  as  to  the  law  arising 
from  '••.uch  r;;!es.  The  rules  of  the  land  office  cannot  It-- 
proved by  witnesses;  they  arc  to  be  found  on  the  records 
of  the  land  office,  and  in  the  proclamations  of  the  proprie- 
tary. Opinions  as  to  the  riles  of  the  land  office  cannot 
be  received  as  evidence.  The  usage  and  practice  of  the 
land  office  must  be  proved  by  the  adjudications  of  the 
!ges  of  (he  land  office,  and  not  by  the  opinions  of  wit- 
nesses as  to  what  that  usage  and  practice  ma\  be.  i 
adjudications  contain  the  legal  information  as  to  what  have 
been  t'.ie  usage  and  practice  in  the  land  office.  The 
court  therefore  refuse  to  allow  the  witness  to  Oe  examined. 
The  defendant  exceptcd. 

,  n  -rim      2.  The  plaintiff  offered  in  evidence  the  same  title  which 
-  m  ttee  was  offered  in  evidence  in  the  c.ise  of  the  same  plaintin" 


l,,t.- i. i. 

fimlr  »f  rrt 

ki.il  -I.- 


Vorrw,  tried  at  the  present  term,  and  which 
''.'•*  1  ;icularly  set  out  in  the  fourth  bill  of  r.rrrptimx 

"••J  taken   in  that  cause.     (Jntc    132.,)     The   plaintiff'  then 


. 

j, roved,  tha'    the  land  referred  to,  called  tl'oocTa  I^ol,  ac- 


II 


inr 

lr£Jj  quired    by  reputation  the   name  of  Wooil's  Inclomire.  and 
,„,,  that  they  arc  one  and  l/.e  >ame  tract  of  land.     The  d. 

/liiVpj)"*01  of  1>»C  compaction  raonej  on  vacant  land  urreyed 


OP  MARYLAND.  155 

tlatit  then  read  in  evidence  a  patent  granted  to  John  Car-  1807. 
muck,  Stephen  Richards,  and  Daniel  Richards,  for  a  tract 
of  land  called  Hobson's  Choice,  dated  the  23d  of  January 
1 753,  for  25  acres.  Also  a  warrant  of  resurvey  granted 
to  the  said  patentees  on  the  18lh  of  April  1753.  Also  a 
certificate  made  in  virtue  of  that  warrant,  dated  the  4th  of 
September  1753,  and  the  land  called  The  Resurve.y  on 
Hobsorfs  Choice,  containing  395  acres,  which  was  examined 
and  passed  the  1st  of  July  1755.  Also  the  patent  which 
issued  in  virtue  of  that  certificate,  to  Basil  Dorsey,  dated 
the  19th  of  May  1755,  stating  that  the  certificate  had  been, 
on  the  19th  of  May  1755,  assigned  to  him  by  Carmack  and 
Richards.  Also  an  order  of  the  land  office  for  granting  a 
certain  warrant,  and  the  warrant  which  issued  in  virtue 
thereof,  dated  the  15th  of  October  1754,  to  Henrietta  Maria 
Dulany,  for  3000  acres.  Also  a  renewment  of  that  war- 
rant on  the  7th  of  April  1755,  to  //.  M>  fiulany,  for  1127 
acres.  Also  the  marginal  entries  on  the  warrant,  show- 
ing how  the  same  had  been  employed,  viz.  "370  acres  as- 
signed Basil  Dorsey,  and  applied  to  The  Resurvey  on 
Hobsorfs  Choice.^  Also  an  assignment  from  H.  M.  Du~ 
lany  to  B.  Dorsey,  for  370  acres,  a  part  of  the  said  war- 
rant. He  also  offered  evidence  to  prove  that  the  certificate 
of  Part  of  Wood's  Inclosure.,  was  not  returned  to  the  land 
office  at  any  time  on  or  before  the  19th  of  May  1755.  The 
defendant  then  prayed  the  opinion  of  the  court,  and  their 
direction  to  the  jury,  that  the  patent  of  Part  of  Wood's 
Inclosure,  cannot  relate  to  the  date  of  the  certificate  there- 
of, or  to  the  time  of  paying  the  caution  money  on  the  cer- 
tificate, so  as  to  overreach  the  title  of  the  defendant  under 
the  patent  of  The  Resurvey  on  Hobson's  Choice,  but  that 
the  title  under  the  last  mentioned  patent,  is  an  elder  title 
than  that  under  the  certificate  of  Part  of  Wood's  Inclosure^ 
He  also  prayed  the  opinion  of  the  court,  &c.  that  if  from 
the  evidence  the  jury  do  not  find  that  the  certificate  of 
John  Howard  was  returned  to  and  in  the  land  office  when 
Basil  Dorsey  compounded  on  the  certificate  for  T/ie  Re- 
survey  on  Hobson's  Choice,  and  obtained  his  patent  for 
the  same,  that  in  that  event  B.  Dorsey,  though  the  pay- 
ment of  the  composition  money  made  by  him.  was  not  with- 
in two  years  after  the  date  of  the  warrant  in  virtue  of 
which  The  Resurvey  on  Hobson's  Choice  was  resurveyed, 
was  a  fair  purchaser  for  a  valuable  consideration,  without 
VOL.  ii.  20 


CASES  IN  THE  COURT  OF  APPEAL- 

1807.  notice  of  the  equitable  interest  of  J.  Howard,  and  tta  pa- 
tont  to  B.  Dorsey  cannot  be  overreached  or  defeated  by 
relation.  Ami  lie  further  prayed  the  opinion  and  direction 
of  the  court,  &c.  lhat  if  tin-  jury  should  be  of  opinion, 
from  the  evidence  before  them,  that  the  assignment  by  //. 
A/1  Dul any  to  11.  Dor*ry.  \\  a«  made  before  the  18th  of 
April  17-T.i,  tlien  the  payment  of  the  caution  money  made  by 
him  on  his  certificate  of  The  Iff  survey  on  Holmon's  Choice, 
•\\-\\\  takeelVect  and  have  operation  in  the  -«ame  manner  as  it 
the  payment  had  been  made  before  the  18th  of  April  1755. 

£HASE,  Ch.  J.  The  court  are  of  opinion,  that  if  it  ap- 
jiears  to  the  jury  that  the  warrant  of  resurvey,  taken  out 
by  John  Howard,  was  locateil  on  the  5th  of  March  1753| 
find  the  certificate  was  returned  on  or  before  the  18th  of 
April  1753,  when  the  warrant  of  resurvey  on  Hobson'a 
Choice  was  taken  out  by  John  Carmack,  Stephen  and  Da- 
niel Richards,  and  that  the  composition  money  was  paid  by 
Philip  Hammond,  the  assignee  of  Howard,  within  two 
years  from  the  date  of  his  warrant,  then  the  patent  to 
Philip  Hammond,  and  others;  will  operate  from  the  date 
of  the  certificate.  But  if  the  certificate  on  the  warrant 
taken  out  by  J.  Howard  was  hot  returned  to,  and  in  the 
land  office  on  the  18th  of  April  1753,  and  the  jury  find 
that  Car  mack  and  Richards,  or  13.  Dorscy,  did  compound 
On  the  certificate  on  the  warrant  on  Hobsori*s  Choice,  with- 
in two  years  from  the  date  of  that  warrant,  then  the  patent 
to  Hammond  and  others  cannot  operate  by  relation  to  the 
date  of  the  certificate,  and  overreach  the  patent  to  B.  Dor- 
ft£ 

But  if  tha  jury  do  not  find  the  composition  money  was 
paid  withih  two  years  from  the  date  of  the  warrant,  by 
Carmack  and  Richards,  or  li.  Dorsry.  and  do  find  that 
the  certificate  of  J.  Howard  was  returned  to,  and  in  the 
land  office  when  B.  Dorsey  compounded  on  the  certificate 
for  The  Itvturvey  on  Hainan's  Choice,  then  the  patent  to 
Hammond  and  others  \vill  operate  by  relation  to  the  cer- 
tificate: but  if  the  jury  do  not  find  that  the  certificate  of 
J.  Howard  was  returned  to,  and  in  the  land  oflice  when 
B.  Dorsey  compounded  on  the  certificate  for  The  Rcsifr- 
vey  on  Hobson's  Choice,  and  obtained  his  patent  for  the 
Mmo.  in  that  event  B.  Dorsry,  though  the  payment  of  the 
composition  money  made  by  him  was  n>t  within  two  year* 


OF  MARYLAND. 

after  the  date  of  the  warrant,  in  virtue  of  which  7 lie  Re-  1807. 
survey  on  Hobsorfs  Choice  was  resurveyed,  was  a  fair  pur- 
chaser for  a  valuable  consideration  without  notice  of  the 
equitable  interest  of  J.  Howard,  and  the  patent  to  B.  Dor- 
sty  cannot  be  overreached  or  defeated  by  relation— The 
court  being  of  opinion,  that  as  the  land,  (on  which  th$ 
warrant  of  resurvey  of  J>  Howard  was  located,)  was  not 
contiguous  to  the  original  tract  resurveyed,  there  could  be 
no  legal  notice  of  the  location  of  the  warrant  but  on  return 
of  the  certificate  to  the  land  office. 

The  court  are  also  of  opinion,  that  if  warrant  wasap-v 
plied  by  Carmack  and  Richqrdf.  or  B.  Dorsey,  in  pay- 
ment of  the  caution  money,  withjn  two  years  from  the 
date  of  the  warrant  granted  to  Carmack  and  Richards, 
that  such  application  of  warrant  will  be  equivalent  to  the 
payment  of  so  much  money.  But  the  court  are  also  of 
opinion,  that,  although  the  assignment  by  //.  M.  Dulany 
to  B.  Dorsey  was  made  before  the  18th  of  April  1755,  the 
payment  of  the  caution  money  made  by  him  will  not  take 
effect  as  a  payment  unless  the  warrant  was  so  applied  by 
him  within  two  years  from  the  date  of  the  warrant.  Thd 
defendant  excepted, 

3.  The  plaintiff  then  offered  to  prove  that  the  usage  and  pj^nr^fejc^' 
custom  of  returning  certificates  to  the  land  office  was,  that  ""lde^a'^  "tgli™ 
the  surveyors  who  made  the  certificates  respectively  re-  J*^"'  ba"td  ™£ 
turned  them  to  the  land  office,  and  from  the  land  office  K^eorLn  1*™-" 
the  certificates  were  sent  by  the  clerk  or  register  to  the.aJ^^J^IIr'w! 

.     ..'  ."       .          ',  ,  .        ..          rant  was  in  the  of- 

exammer-general  for   examination,  by  whom   again  they, fiee.  the  mat  «n 

_.,         '    '  WT      j i  lh(-'  '»""  rtsurvey 

were  s;enerally  returned  to  the  land  omce.     He  then  pray-  win  operate  by  Si- 

J  .  •      .  ;-    •*     laiiontothe   ctiti- 

ed  the  opinion  of  the  court,  and  their  direction  to  the  iury,  fi«»te.  um  it  tha 

•    J      J  '  latter      certificate 

that  if  they  do  find  the  composition  money  was  not  paid^*8"?1111^011 

J  v  r    .       fice  when  the  iom- 

within  two  years  from  the  18tJi  of  April  1753  by  Carmack  ^il™r™™^^ 
and  Richards,  or  B.  Dorsey,  that  then  the  patent  to  P.  gjjj  lil"ht.;jot  th^ 
Hammond  and  others  will  operate  by  relation  to  the  certifi-  ^""  ""^i  f°be 
cate,  although  the  jury  shall  find  that  the  certificate  was  not  °Jae£aa 
returned  to  the  land  office  before  the  1 8th  of  April  1753$ 
provided  the  composition  money  was  paid  on  the  certificate 
of  Part  of  Wood's  Enclosure  before  the  composition  money 
•was  paid  on  the  survey  made  in  pursuance  of  the  warrant 
of  resurvey  which  issued  on  the  18th  of  April  1753.  He 
also  prayed  the  direction  of  the  court  to  the  jury,  that,  the 


|06 


CASKS   IN  THE  COVIIT  OF  A1TKALS 


1807.  application  of  common  warrant  <o  compound  on  the  rcsur- 
\ty  made  under  the  warrant  of  the  18th  of  April  17:V>, 
can  have  no  other  c  fleet  than  if  the  caution  money  had 
been  paid  in  money:  and  that  although  they  find  that  the 
connuon  warrant,  which  Mas  applied  as  composition  mo- 
ney, issued  on  the  5th  of  April  1755,  yet  it  can  only  be 
considered  a  payment  for  the  land  included  in  the  survey 
made  under  the  warrant  of  the  18th  of  April  ir^l,  from 
the  time  it  was  applied  as  a  payment,  and  cannot  ^o  back, 
either  to  the  5th  of  April  1  7-55,  or  to  the  time  it  was  as- 
signed to  B.  Dorsey  who  made  the  payment  w  ith  it. 

CHASE,  Ch.  J.  delivered  the  same  opinion  of  the  court, 
as  that  given  on  the  defendant's  prayer  in  the  preceding 
bill  of  exceptions,  excluding  the  first  section  of  that  opini- 
on. The  plaintiff  excepted;  and  the  defendant  also  ex- 
cepted  to  so  much  of  the  opinion  of  the  court  as  deter- 
mines, that  under  the  circumstances  as  stated,  which  in 
the  opinion  of  the  court,  will  entitle  the  patent  for  Purl  of 
H'ooifs  Inclosure  to  a  relation  to  the  certificate  so  as  to 
overreach  the  patent  for  The  Jiesurvey  on  liaison's  C/ioicc, 
under  which  the  defendant  makes  title. 

ir  t»i«  piaintifTi      4.  Tlie  defendant  then  offered  evidence  that  B.  Borsru. 

jrsnt  op«Ti(t«t  »>y  •/' 

Si!i!X?  ihe°i*n\fie  *ne  patentee,  in  virtue  ot  "his  resurvey,  entered  into,  and 
rarhrt'ifn  eid<-r  was  Posscs9e(l  °'  The  Jtesvrvey  on  Hobvuifs  Choice  in  the 
Ki?to^h«iMVn«£  vear  !~55»  and  continued  so  possessed  until  his  death, 
"hnr  V™hM.™J,ndrr  which  happened  in  the  year  1763;  that  by  his  will  he  d«- 
^irjili^o'i.V-)di!!lin  vised  the  land  to  his  son  Dennis  in  tail,  remainder  to  his 
under  binf^Mu  daughters.  That  in  the  month  of  April  1774,  JJr.nnis  Dor- 
rtiimH1  Ur*  *be  *cy,  the  devisee,  then  a  minor  of  the  age  of  18  years,  en- 
t*+  '  'poi^'-M  .on  tered  upon  The  fleaurvn/  on  Hobson's  Choice,  and  had 

w»t»»v  •vtml  in-  .' 

rhitnrtt    r»r    20  the  same  surveyed  and  run  out;  that   he  continued    so  to 

jr»rt  j>nnr  to  the  • 

br-frmg  the  eject  possess  that  land  until  his  death,  which  happened    in  tlio 
^"••^J^jjear  1778.     That  D.  Dorsey  died    intestate  and  without 
^^'^  10  lssue>  leaving  three  sisters,  to  wit,  .7n'«»«,  married  to  TTio- 
f  **'""'  ma*  Sotkrs,  Eleanor  married  to  Upton  Shcredine,  anil  /.'//- 
zabeth  married  to  Ephraim  IfuicanL     That  after  the  death 
of  D.  Dorse}/,  the  said  Sollers,  Shercdine  and  Ho  ?/•«?•</,  in 
right  of  their  wives,  entered  into  the  land,  and  were  |m-- 
sessed  thereof  until  the  22d  of  February  1779,  when  they, 
together  with  their  wives,  conveyed  the  land  to  the  present 
defendant,  who  in  virtue  of  that  deed  entered  into  the  land 


OF  MARYLAND.  157 

on  the  same  day,  and  was  possessed  thereof,  and  has  conti-  1807. 
nued  so  possessed  until  this  time.  He  then  offered  in  evi- 
dence, from  the  rent  rolls  in  the  land  oflice,  that  the  said, 
land,  upon  being  patented  to  D.  Dorscy,  was  also  charged 
to  him  in  the  rent  rolls;  and  also  the  debt  books  of  the 
lute  Lord  Proprietary,  whereby  it  appears  that  the  quit 
rents  d.ue  upon  the  said  land  were  iu  the  debt  books  charg- 
ed to  B.  Dorsey,  and  were  by  him  paid  from  the  year  1750, 
until  his  death  in  1763;  and  that  after  his  death,  the  quit 
rents  were  in  the  debt  books  charged  to,  and  paid  by,  D. 
Dorsey  the  devisee,  from  the;  year  1763,  until  the  revoluti- 
on abolished  the  proprietary  quit  rents.  The  defendant 
then  prayed  the  opinion  of  the  court,  and  their  direction 
to  the  jury,  that  if  they  should  be  of  opinion,  from  the 
whole  evidence  before  them,  that  B.  Horsey  came  into  the 
actual  possession  of  The  Resurvey  on  Hobson's  Choice, 
claiming  the  whole  thereof  under  and  by  virtue  of  the  pa- 
tent thereof  granted  to  him,  before  the  3d  of  May  1760, 
•when  P.  Hammond,  the  father  of  Charles,  and  grand-fa- 
ther of  Philip,  one  of  the  lessors  of  the  plaintiff',  died,  and 
that  /?.  Dorsey  was  on  that  day  in  the  actual  possession  of 
that  tract,  claiming  the  whole,  and  that  he,  and  those 
claiming  under  him,  other  thaw  the  lessors  of  the  plaintiff', 
and  those  under  whom  they  claim,  have  been  in  the  actual 
possession  thereof,  claiming  the  whole,  from  the  day  last 
aforesaid  until  the  time  of  bringing  this  action,  then  the 
plaintiff'  cannot  recover,  unless  it  should  be  satisfactorily 
proved  to  the  jury,  on  his  part,  that  Charles  Hammond, 
son  of  Philip,  or  some  person  claiming  under  him,  made 
an  actual  entry  into  Part  of  ff'ood's  Inclosure,  claiming 
the  whole  thereof,  at  some  time  within  twenty  years  next 
after  the  3d  of  May  1760, 

Harper,  for  the  Defendant,  cited  Russell's  Lessee  vs.  Tin- 
ker, \Harr.  $•  Johns.  71.     Davidson' 's   Lessee  vs.  Btutly^ 

3  Harr.  fyM'ffen.  594.     Miller's  Lessee  vs.  Ilynson,  (in 
the  Provincial  Court,  May  term  1734.)    Hawkins's  Lessen 
vs.  Bollon,    (Ibid,  April  term  1745.)     APCrackin   et  nx. 
Lessee  vs.  Harris,  (Ibid,   May  term  174,8.)     £./?/£.  Cum. 
311,  312.  Co.  Lilt.  15,  a,  Sect.  8.    Taylor  vs.  Horde,  et  a/. 
1  Burr.  119.     /tec.  Ab.  \\t/Trespass,  (C.  3.)     Ero.  M. 
tit.    Surrender,    245.   b.     1    Leon.    209.     2  Leon.    147. 

4  Leon.  184.     2  2}oll.  Jib.  tit.  Trespass >  553,  554. 


158  CA>r>  IN  THE  COURT  OF  APPEALS 

180r.  CH\SI  ,  f  h.  J.  A  naked  possession,  (possession  without 

right.)  is  only  a'l\er-;iry  to  the  extent  of  actual  enclosures. 
If  the  patent  to  P.  Hununond  and  others  relates  to  thu 
certificate,  the  Dorsey*  and  the  defendant  had  only  a  naked 
))u->-er.sion,  and  limitation  by  adversary  possession  is  only 
to  the  extent  of  enclosure?.. 

The  court  are  of  opinion,  that  if  the  patent  to  P.  Hum- 
iiiontl  and  others  doth  cperate  by  relation  from  the  date  of 
the  certificate,  that  in  such  event  the  patent  to  JL  Dorse;/ 
lor  7 'he  Hcwrccy  on  Hobnon">s  Choice,  which  is  stated  to 
be  included  in  the  patent  to  P.  Hammond,  and  other?, 
cloth  nut  pass  any  thing,  but  is  altogether  inoperative,  and- 
the  entry  of  IL  f)or*ey,  and  the  possession  by  him,  and 
those  claiming  under  him,  was  without  right,  and  that  such 
PU--C-.MOII  cannot  bar  the  plaintiff',  if  the  jury  do  find  the 
tart-  stated  by  the  plaintiff',  unless  they  also  find  that  such 
po»-r~.ion  was  by  actual  inclosures  for  twenty  years  01- 
upwards,  prior  to  the  bringing  this  ejectment;  and  in  such 
ca^e,  it  would  only  be  a  bar  to  the  extent  of  such  actual 
adversary  possession  by  enclosure.  The  defendant  ex- 
cepted. 

•  KraM^'htTeti-      **'  ^e  p'a'ntiff*  then  prayed  the  opinion  of  the  court, 
» "'to°<L'r n*«u  antl  their  direction  to  the  jury,  that  if  they  rind   and   be- 
fewdrdtm'il'pm"  'ieve  the  tacts  to  be  true  as  stated  by  him,  that  then,  upon, 
-  *^"«V.r  principles  of  law,  when  the  patent,  under  \\bich  he  claims, 
o'r  wan  obtained  from  the  land  office  for  the  land  included  in 
Tf  the  certificate  of  rcsurvey,  the  patent  related  to  the  date 
'iwotitir  a  p»r-  of  the  certificate,  and  operates  to  ^ive  title  from  that  time, 
auiwi,  i»  i»  i»-  unless  facts  are  proved   to  rebut  and  defeat   such  relation; 
and  that  the  defendant,  on  his  part,  must  prove  all  facts 
necessary  to  defeat  such  relation,  it  being  only  incumbent 
on  the  plainliiV  to  produce  office  copies,  under  seal,  of  the 
warrant,  certificate  and   patent,  tc>  claim  ou  his  part  the 
benefit  of  relation. 

CHASE,  Ch.  J.  The  court  arc  of  opinion,  that  the  rela- 
tion of  the  patent  to  the  certificate,  so  as  to  overreach 
_nants,  i-  founded  on  a  principle  of  equity,  and  is  a 
fiction  of  law  introduced  fur  tin-  attainment  of  justice,  and 
to  prevent  circuity  of  action — the  court  doing  that  which 
a  court  of  equity  would  effect 


OF  MARYLAND. 


The  court  refuse  to  give  the  direction  prayed,  being  of  1807- 
opinion  that  it  is  incumbent  on  the  plaintiff*  to  show  an 
equity  to  entitle  him  to  the  benefit  of  relation,  and  the 
producing  copies,  under  seal,  of  the  warrant,  certificate 
and  patent,  is  not  sufficient  to  entitle  him  to  sucli  benefit. 
The  plaintiff  excepted. 


6.  The  plaintiff  having  given  in  evidence  the 

ahd  patent  for  Part  of  Wood's   Indosure^   and  that  the  Jo  \h^.)iT  office, 

certificate  was  examined  and  passed  on  the  Gth  of  March-ietermiMbW   "y 

1754,  and  the  caution  money  paid   on  the  Gth  of  March*1 

1754;  and   having  proved,  that  before  the  year  1766,  it 

was  not  the  practice  of  the  land  office  that  the  time  of  the  re- 

tarn  of  the  certificates  should  be  endorsed  on  the  certifi- 

cates respectively;  and  also  having  given  in  evidence  that, 

under  the  proprietary  government,  it  was  the  usual  prac- 

tice for  the  surveyor  to  return  to  the  office  the  certificates 

for  the  office,  and  for  the  clerk  of  the  land  office  to  send 

the  certificates  to   the  examiner-general   to  be  examined, 

and  for  him  to  return  the  same,  after  examination,  to  the 

clerk  of  the  land  office;  applied  to  the  court  to  instruct  the 

jury,  that  these  facts,  so  offered  in  evidence,  are  sufficient 

to  prove  that  the  said  certificate  was  duly  returned  to  the 

iand  office  on  or  before  the  5th  of  March  1754,  unless  the 

defendant  can  prove  the  contrary. 

CiiASE,",Ch.  J.  The  court  refuse  to  give  the  direction 
prayed,  being  of  opinion,  that  the  time  when  the  certificate 
•was  returned,  is  a  matter  of  fact  determinate  by  the  jury, 
upon  the  whole  evidence  relative  to  that  fact  given  by  the 
plaintiff  and  the  defendant.  The  plaintiff  excepted. 

7.  The  plaintiff  then  offered  in  evidence,  that  the  office  tic*%*"a*vee  TC 
of  the  examiner-general,  and  the  office  of  the   agent,    to  fa",',.1,11"?  ^"'^ 
whom  the  caution  money  was  paid,  were  held  in  the  city  of  Jheh^eM^^SS 
Annapolis,  and  that  the  party,  after  his  certificate  was  ex-  K^mi/M™"^ 
amined  and  passed,  and  returned  to  the  office,  was  accus-  rairiest'htreo&'i 
tomed  to  carry  his  certificate  to  the  office  of  the  agent,  and  be^the  pmmtag 
pay  the  caution  money  thereon,  and  to  bring  the  same  back  tnt-s    tWe'of,  e«£ 

1     J  the  rent  rol!» 

to  the  office;  and  that  after  the  certificate  was  compound-    Tin-  acting*  an* 

i!'«ini;s  of  a  ptrson 

ed  on,  the  party  could   not  take  his  certificate  out  of  the  uwler  vl)"ni   "ie 

party      don      not 

office,  without  applying  to  the  judge  of  the  land  office,  and  claim«ai-e  uot|,t>r- 

luitti  cl  KI  be  piven 

obtaining  his  permission  for  that  purpose,    and  that  before  h\mideuit  *fi*'UJt 
the  certificate  was  taken  out  on  such  permission,  the  [arty 


1GO  CA*V>  IN  TIIK  COURT  O.v  Al'I'KALS 

1807.         \\  :i-  rei|uired  to  give  a  receipt  for  the  same,  which   r 
*~ -v— '      \v.i-  kept  in  a  memorandum  book    for  tint  ami  other    nur- 

>UllJ 

»»  p--^-«.      It  was  ottered  in  evidence,  that  the  said  memoran- 

book,  as  well  as  other  memorandum  b.>.»ks  which  had 


kept  for  particular  purposes  in  the  land  office  under 
t:ie  proprietary  government,  have  been  lu>t  or  dcstrov  ed. 
That  in  such  instances,  under  the  propr'u  -tai  v  ^overnment, 
in  which  the  parties  thcmseUcs  carried  the  certificates  to 
the  land  office,  they  were  carried  there  before  they  were 
examined  ami  passed,  and  were  sent  to  the  examiner-gene- 
ral by  the  clerk  of  the  land  office  to  be  examined,  in  the 
fame  manner  as  if  returned  into  the  office  by  the  survey- 
or. And  it  \\;is  also  u;i\en  in  evidence  by  John  Lulluhan, 
K -i I u i  10,  Register  of  the  Land  Office,  who  had  been  ex- 
amined as  to  the  foregoing  facts,  that  before  the  jrttl 
iron,  it  was  not  the  practice  or  usage  in  the  land 
office  to  endorse  on  the  certificate  the  time  when  the 
certificate  was  received  into  the  office;  that  when  a 
warrant  of  any  kind  was  issued  for  the  surveying  or  tak- 
ing up  of  land,  it  was  immediately  entered  up  and  record- 
ed in  a  record  book  kept  in  the  land  office  for  that  pi::  \ 
that,  when  a  person  applied  to  the  office  to  caveat  any 
certificate,  if  the  same  was  not  in  the  office,  or  could  not 
conveniently  be  found,  it  was  usual  to  enter  the  caveat  in 
the  margin  of  the  warrant;  that  under  the  proprietary  go- 
M-rniiienl,  a  caveat  docket  was  regularly  kept,  in  which 
was  also  entered  every  caveat  as  soon  as  made;  but  that 
those  dockets  are  now  lost.  That  where  a  certificate  was 
cavcated,  the  judge  of  the  land  office  did  not  act  upon  the 
caveat  and  dismiss  the  same,  under  the  proprietary  go- 
vernment, unless  the  certificate  was  in  the  office;  that  the 
•witness  knew  of  no  instance  to  the  contrary;  and  that  it 

!ie  usual  practice  to  endorse  the  dismissal  of  the  ca- 
veat on  the  certificate.  That  if  a  caveat  was  entered,  it 
\va-»  nut  lh<- »j-uge  of  the  office  to  have  patents  made  out, 
s>ent  to  the  governor  to  be  sealed,  returned  to  the  office 
and  recorded,  until  a  hearing  and  dismissal  of  the  caveat; 
nnd  that  although  the  caveat  had  remained  more  than  six 
months  unacted  upon  and  unrenewed,  yet  it  was  not  the 
practice  and  usage  of  the  land  office,  under  the  proprietary 

niiient,  to  have  the  caveat  dUniMed,  and  patent  is- 
sued and  recorded,  unless  on  particular  application  of  the 
party  entitled  to  the  patent  The  plaintiff  further  offered 


OF  MARYLAND.  161 

in  evidence,  that  the  said  Callahan  was,  when  examined,        1807. 
in  the  forty-ninth  year  of  his  age;  that  he  first  went  to 
write  in  the  land  office  in  the  latter  end  of  the  year  1767, 
and  continued  in  that  office  nearly  the  whole  time,  until 
the  formation  and  adoption  of  our  present  government; 
that  when  he  went  to  write  in  the  land  office,  William 
Steuart  was  the  clerk  of  the  land  office,  and  continued  such, 
until  some  time  in  the  year  1774,  when  David  Steuart  suc- 
ceeded him  in  the  said  appointment,  and  continued  to  hold 
that  office  until  the  appointment  of  Saint  George  Peale,  aa 
register  of  the  land  office,  in  April  1777;  and  that   at  the 
time  the  said  Callahan  first  went  to  write  in  the  land  of- 
fice, Saint  George  Peale  was  the  eldest  clerk  or  writer  ia 
that  office,  employed  by  JVilliam  Steiiart^  (who  \vas  not 
very  often  himself  in  the  office,)  and  remained  so  until  he 
was  appointed  register.     That  during  the  American  revo- 
lution, to  wit,  sometime  in  the  month  of  January  1776,  the 
books,  records  and  papers,  belonging  to  the  land  office, 
were   packed   up  and  removed   to    Upper   Marlborough, 
where  they  were  kept  until  sometime  in  July  1778,  when 
they  were  brought  back  again  to  the  city  of  Jlnnapolis,  and 
that  by  snch  removal  some  loss  and  injury  had  happened 
to  some  of  the  books  and  papers.    The  plaintiff  further 
offered  in  evidence  the  assignment  of  the  certificate  for 
fart  of  Wood's  Inclosure,  and  that  it  was  made  and  exe- 
cuted on  a  separate  piece  of  paper,  and  that  the  assign- 
ment is  annexed,  by  wafers,  to  one  side  of  a  sheet  of  the 
original  certificate  in  the  land  office,  and  that  the  side  of 
the  sheet,  to  which  it  is  so  annexed,  is  blank,  and  not  writ- 
ten upon.     The  assignment  is  of  "the  certificate  returned 
on  a  certain  resurvey  had  and  made  upon  86  acres  of  land, 
being  part  of  a  tract  of  land  called  Wood's  Indosure,  ori- 
ginally taken  up  by  Joseph  Wood."     He  further  offered 
in  evidence,  that  the  certificate  of  Part  of  Wood's  Indo- 
sure, now  remaining  in  the  land  office,  comprizes  and  is 
written  upon  two  sheets  of  paper;  and  that  the  said  Calla- 
han had  no  knowledge  that  the  certificate  was  ever  out  of 
the  office  from  the  time  the  caution  money  was  paid  there- 
on.    The  said  Callahan  further  in  his  testimony  declared, 
that  he  had  no  knowledge  what  was  the  usage  and  practice 
in  the  land  office  in  the  year  1753,  and  for  many  years 
after;  that  when  he  spoke  of  the  usages  and  practices  of 
the  land  office,  he  meant  the  usages  and  practices  whilo 
VOL.  ii.  21 


rein,  which  he 
p  .. 

• 

o  the  con- 
. 

cc  at  the 

the  practice  to  note  on  the 
• 
• 

evick  "3  from  the  L 

;!>e  surveys  were 
.  :i  of  the  v 
veats  ,  g  on  those 

I  that  neither  the  caveats,  the  • 
.ona  mail-  "n  the  certificates.     lie 

:  1 1     £0  bundle  of  . 

1  to  the  land  ol 
IT  1753,  amounting  to  the  m.n,! 

brought  into  court,  and  offered   i .. 

:h  they  were  found  in  the  land  « 

and  '  3  number  albvesaid  there  were  only  three 

certificates  on  which  caveats  were  noted.     The  defendant 
'          ffered  to  prove,  that  there  is  no  endorsement 
:rtiticate  now  in  the  land  office  for  Part  oj  /•' 

returned  to  the  land  of- 
fice; and  also  proved  by  John  Cattahan,  esquire,  re  _ 

j  land  ofiice,  that  v/hcn  a  certificate  of  survey  or  re- 
is  returned  to  the  said   office,    and   remained 
any  person  who  opposed  « 
•.s  customary  to  endorse  the 
:j»on  the  ba:k  of  the  ccrtifa; 

i  *  the  certificate  \vas  not  in  the  land 

i  the  caveat  was  so  entered,  that   then  it  wa* 

..litry  of  the  caveat  iu   t] 
nrrant    book,  opposite    to    the    warrant 

ccrtif.catc  v/ns  founded.     He  then   produced 

the  land  offi  .uwed  to  the  jury,  the  \var- 

vjjori   which   this  certificate  was  founded,   and   the 

'lich  the  same  is  entered;  and  also  showed,  that 

i  thereof,   opposite  to  the  warrant,    it  is  en- 

•r*nbury  Ridgely  diii,   on  the    12th  day  of 

avcat  against   a  grant  is-nin^   on   the 

Part  of  WcotFa  Jnclosurt.     He  then  pro- 


cLced  th:  original  certificate  for  Part  of  Wood? a  Lir 

me  showed  to  tti  >.  noon- 

t;  tte,  made  by  any  clei-k  or  o^cev  in 

(I  office,  by  \vhich  it  can  be  inferred  that  t! 
D   the  land   office,  until  th?  80th  of  Janvury  I" 
:en  there  is  an  entry  thereon  that  the  «,air.e  was  c?.ve 
by  .?//. '/,"/>,  L't-in*  and  Matthias 

mond}  (to  whom  the  same  certificate  had  been  aligned  by 
J,  Howard))  and  that  the  certificate  h^.3  no  p'  •  of 

courses  annexed  thereto,  or  filed  the  He  the;' 

fered  in  evidence,  that  although  it  was  c 
surveyor,,  who  made  out  a  certificate  before  the  re--> 
to  return  the  same  to  the  lar.d  of 
transmitted  to  the  examine] 

gelation  which  prevented  the  party  :  :g 

his  own  certificate,  and  carrying  it  himself  to  the  ex;- 
er,  previous  to  its  coming  into  the  land  office;  acd  that!. 
fore  the  revolution,  as  well  as  sines,. it  was  th:. 
the  ownsr  of  a  certificate,  which  had  been   c.-aTrj: 
passed,  to  carry  the  same  to  the  person  authorised  to 
ceive  the  composition  money,  th.it  lie  rv:rht  "Gcertain    :    . 
sum  to  b6  paid  thereon,  and  to  p".y  the  ce?r.poc;t:on  \L 
to  the  person  so  authorised  to  recs:re  the  same,     That  : 
the  14th  of  June  1733,   there  was  a  proprietary  order  in- 
specting the  continuance  of  caveats,  in  th j  ''ov;»  ( 
in^:  "That  no  caveat  be  permitted                               -'the 
expiration  of  six  months."    That  on  the  !?th  of  De 
ter  1768,  there  was  a  second  proprietary  jord  | 

t,  in  the  worda  following:  <5That  no  caveat  he  per- 
riitted  to  continue  longei  "'be  rei:cv.'ci 

after  tlv.it  trne,  v.:ile:s  "pen  very 

-o  ofi'ered  evi.1  the  revo- 

Ir.fion,  was  entered  upc 
lands  against  any  parser 
and  no  account  raised  ag 
lands,  for  quit  rents  as  due  to  [ 

lands  which  were  patented.     Ti  - 

turned  to  the  land  offico,  ani  had  bee  . 
i,  anil  compounded  on,  it  was  the  int  r 
prietary  that  it  should  be  patented;  and  if  :• 
remained  in  the  land  office,  and  there  was  no  teg: 
on  to  patent  issuing  thereon,  it  v.as  custoiria.y  to  is> 
patent  thereon,  and  charge  the  :;r^-tec  .uit  rents 


CASES  IN  TirE  COURT  OF  APPEALS 

1807.        due  thereon  to  the  proprietary.     It  is  admitted   that  the 
whole  of  the  evidence  ottered  by  both  plaintiff'  and  defen- 
dant, as  stated  herein  preparatory  to  tlie  taking  this  bill  of 
exceptions,  so  far  as  the  same  is  not  derived  from  papers  of 
the  land  office,   herein  stated  and    referred  to,    is  derived 
from  John  Callahan,  Esquire,  register  of  the  land  office. 
That   one   of  the   three   certificates,    herein   before   re- 
ferred to  by  the    plaintiff,    as   the  case   of  a  certificate 
caveated  whereon  the  caveat  was  entered  in  the  margin  of 
the  warrant  and  not  upon  the  certificate,  was  as  follow 
eth:  The  original  certificate  bore  date  on  the  22d  of  July 
175-1,  upon  which  there  was  a  caveat  entered  on  the  26th  of 
Februarv  1756,  by  one  J.  Bayne;  that  this  caveat  was  en. 
tcred  on  the  margin  of  the  warrant,  and  also  on  the  certifi- 
cate returned  to,  filed,    and  now   remaining  in  the  land 
office;  that  the  said  certificate  was  afterwards  amended, 
and  the  amended  certificate,  bearing  date  on  the  26th   of 
May  1769,  returned  to  the  land  office,  upon  which  amend- 
ed certificate  a  patent  issued  on  the  15th  of  November  1769, 
and  in  the  margin  of  the  warrant,  upon  which  the  same 
issued,   there  was  an  entry  in  these  words  "caveat  over- 
ruled.    Patent  issued  15  October  1769,"  of  which  pro- 
ceeding there  was  no  entry,  either  upon  the  original  certifi- 
cate, or  upon  the  amended  certificate.     The  plaintiff  then 
offered  to  give  in  evidence  a  petition  preferred  by  T/IOJIHIS 
florsey,  on  the  29th  of  October  1772,  to  the  judges  of  the 
land  office,  caveating  the  certificate   for  Part  of  ff'ood't 
Jnclosure,  which  was  originally  drawn  in  the  hand-writing 
of  Samuel  Chase,  esquire,  and  which  remains  in  the  land 
office.     The  petition,   as  originally  drawn,  after  stating 
the  issuing  the  warrant,  the  resurvey,  &c.  was  as  follow.-: 
"That  the  said  certificate  was  never  returned  to  the   land 
office,  but  kept  by  the  said  Philip  Hammond  in  his  posses- 
sion, till  his  ileathin  the  year  1761.     That  the  said  certi- 
ficate was  kept  by  a  certain  John  Hammond,  esquire,  son 
of  the  said  Philip,  or  by  the  taid,  a  certain  Charles  Ham- 
mond, esquire,  or  one  of  them,  from  the  death  of  ///> 
Philip  until  the  month  of  June  1771,"  &c.  which  petit  inn 
appears  on  the  face  of  it  to  have  been  altered  so  as  t. 
u-  follows:    "That  the  said  certificate  was,  on  Ihr  4//i  »f 
October  1753,  re''MT'  d  to  the  land  office,  that  the  said  cer- 
tificate was,  on  the  \3th  oj  October  1763,  withdrawn  out 
of  tht  land  flffict  by  a  certain  John  Hammond,  esquiir. 


OF  MARYLAND.  165 

son  of  the  said  Philip,  till  the  month  of  June  1771,"  &c.        1807. 
And  the  plaintiff  offered  to  give  in  evidence,  that   the 
alteration  made  in  the  petition,  by  inserting  the  words  and 
figures,  "on  the  4th  of  October  1753,"  and  the  words  and 

O  '  ** 

figures,  "on  the  15th  of  October  1763,  withdrawn  out  of 
the  land  office?'  is  in  the  handwriting  of  St.  George  Peale} 
and  that  St.  George  Peale  departed  this  life  some  time  in 
the  year  1779. 

CHASE,  Ch.  J.  The  court  refuse  to  permit  the  plaintiff 
to  give  in  evidence  to  the  jury  the  petition  preferred  to, 
the  judges  of  the  land  office  by  Thomas  Dorsey,  and  the 
alterations  therein,  in  the  hand-writing  of  Saint  George 
Peale,  as  a  circumstance  to  prove  at  what  time  the  certifi- 
cate for  Part  of  Wood's  Inclosure  was  returned  into  the 
land  office,  or  to  prove  that  it  was  returned  into  the  office 
on  or  before  the  5th  of  March  1754,  the  court  being  of 
opinion,  that  it  is  inadmissible  for  that  purpose,  as  the  de- 
fendant does  not  derive  any  interest  in  the  land  in  ques- 
tion under  Thomas  Dorsey,  by  whom  the  petition  was  so 
preferred  to  the  judges  of  the  land  office.  The  plaintiff 
excepted;  and  the  verdict  and  judgment  being  against  him, 
he  prosecuted  this  appeal. 

The  cause  was  argued  in  this  court  at  the  last  June  term, 
before  TILGHMAN,  NICHOLSON,  and  GANTT,  J.  upon  the 
several  bills  of  exceptions  taken  at  the  trial  by  the  plaintiff 
in  the  court  below,  being  those  herein  numbered  3,  5,  6 
and  7. 

Key,  and  Johnson  (Attorney  General,)  for  the  Appellant, 
on  the  third  bill  of  exceptions,  contended,  that  the  relation 
of  a  patent  to  the  certificate  of  survey  depended  alone 
upon  those  facts  which  appeared  upon  record;  that  a  court 
of  law  could  not  travel  outx>f  the  record  and  take  into  con- 
sideration that  which  did  not  appear  of  record;  and  that 
where  relation  had  been  refused  at  law,  it  was  upon  the 
ground  of  something  appearing  on  record.  They  cited 
Garret  son's  Lessee  vs  Cole,  2  Harr.  $•  M'-Hcn.  459.  Gar- 
retson  vs  Cole,  I  Harr.  $  Johns.  370.  Morris  vs  Pugh, 
3  Burr.  1243.  Shep.  Jib.  151.  That  if  the  court  could 
travel  out  of  the  record  for  proof  that  the  certificatf  of 
survey  was  out  of  the  land  office,  they  could,  with  the 


W-^  -  1 

On  ns  —  That  if  the  relation  of  a 

to  the  •  •  ,:ted  to,  . 

t  on  partj 

' 

d  'S"*/.'; 

:5. 

On  the  «J  '/;  !  '11  <,  -Th:.t  it  \v.v>  incut. 

oti  Uic  tlcfeii-1  :to  of  re? 

out  of  the  l:nd  offce;  and  that  unle-s  he  pn. 

1  to  presume  ^! 
cr  out  o-  .  n  hiid  teen  t 

;;tions  —  That  tl 
in  the  IK  *  been  made  by  a  clerk 

i    the  fact  was 

tl,  :  tlie  cas> 

-d  in  evi 


and  /  t!:c  Appellee,  on  the  / 

;  •          ,      tended,  t!  .-• 
en  by  tha  pluintili'  bt!' 
• 

<1  tliat  there 
-.-•lar.t.     But  that  c 

a   to'  be 

• 

- 
' 

.  '  ''    ' 

I 

. 
. 
la\ 

riteil  /.  '  Joh"*-  ' 

. 

.    I     I       '.    .    i 
. 


.AI.YLAXD. 


'a  case,  5  Coke,  28.  b.     S'Bfc.  .1807\ 

Co.  it//.  150.  a.     /xzne/  :_oM.    ."       "  "', 

152,  153,  154.     They  also  contended,  that  i  :itio:i 

lur.d  warrant,  in  payment  of  the  com  p  ".>ney 

8  resurvey,  ought  to  be  on  the  day  itwasassiga- 

<ui  to 

On  the  sixth  bill  of  exceptions,  that  it  was  a  matt-; 
fact  ifor  the  jury   to  ascertain  certificate  of  survey 

^turned  to  the  land  office,  as  the  time  when  it  was  re- 
turned was  not  endorsed  thereon  by  the  register.  Thoy 
cited  Carroll  et  a!.  Lessee  vs.  Norwood,  I  Harr,  fy  J<. 

On  the  seventh  bill  of  exceptions,  they   contended,   1, 
the  receipt  of  the  composition  money,  as  endorse:!  o.i 
the  Cv  .    was  not  evidence  thut  the.  certificat  • 

date  of  the  receipt,  or  ever  was,  in  the  land  ofiice  — 

•?r  not  being  an  omccr  of  that   ofiice.    2.  That 

.derations  in  the  petition,    by   one   of  the  clerks   in 

.,;ce,    was   not  an  official  act,  and  could  not,    there- 

affect  the  defendant,    who  did  not  claim  under  the 

oner.  Curia  adv.  vult. 

:  CCTTRT,  at  this  term,    concurred  in  the  cp^.. 
u  need  by  the  General  Court  in  the   several   bills  of 
ptions  taken  on  the  part  of  the  plaintiff  below. 

JUDGMENT   AFFIRMESo 


BEALL,  el  al.  Lessee  vs.  IJUHWOOD.  DE:  EM;. 

A.PJ2A.I.  from  the  General  Court.     Ejectment  for  a  tract  . 7n  «fc*«ow 
::U  called  Buzzard  Island,  lying   in   Culvert  county,  f^-"^,-' 

Sfi  'lat'ire  1  = 
»ul  fcwl  is  to  be  collected  from  the  whole  of  ti:o  I"  v.%  am!  the  circ-ii-     • 

elands  had  bwn  dented  by  A  to  his  *on  B,  intail  male,  i-fji;:i'-i<lei-  iuuil    mult-    i.    iiit  eldest 
.-on  C,  le  to  hit  third  son  D  I  o  his  two  daughters    i.  m 

:mon— £t  by  his  petitirii  to  the  le,  :  i,    -.haMir  hsui    .irJ  .    (\t    , 

:it-hters,  I<  and  M  )  who  ccitld  not  inherit  the  lands  ;.!';; 

•  '.,  (  .hi)  united  in  the  petition;)  .  :  th«tan  act  miffht  pass     .v.- 

.•f  inheritance  in  fee  simple  in  the  snid  la,id<  in  his  iY  r.::i'e  h  i.;,  in  case    he  s.  r  uli,  i 
•irs  at  the  time  of  his  dea.h;  ami  in  deiaul:  of  k;ur  of  \\\<  -  iir,  i  ,  .>_le   heirs,   the  raid  !:• 
a  sc-.-nQ  ac-corcingf  to  the  will  of  his  father.     Whici:  Dr<iyor  bein;;  th.>;i^.  t   . 

i.o  facts  and  the  prayer  sat  -..  d  ti.e  s:,i<l  lar, 

their  bein  and  luigm,  with  a  provUo,  thai  •     

b  .dy  at  the  tin:-  of  |-.i«  deail;,  or  that  the  i'i    ot  have  issue,  then  the  laan 

u  i  and  stand  limited  as  by  the  will  of  A  was  devised.  Ai';er     a-ii     B  nad  a  -on  U:  rn 
idii      in  the  like  time  of  T.  "leaving  three  dauarliti-rs   H.  .Tand  >•'-.     Diiriiijy  :h--  i' 

t  Conveyed  .to  him  in  fee  by  B»  of  \  seii<>d,  leavmj;  (he  sain 

»;  at  it- r 

ng  survived;  L,  learin  i.-lant.     On  an 

•i  nt  broiiRht  in  the  name  of  the  lessee  of  H,  J  ami  K,  the  three  dan  , 


i(    •  rjectment  for  the  lanii  mor(!,-:ifT-il,    iiolc*s  Jie  cae  dtow  t!m 

.  ^jjii  Lfk-u  »au»&-;U  previou*  to  the  bringing  tlte  ejct- 


log  CASES  IN  THE  COURT  OF  APPEAI> 

1807.  The  defendant,  (the  present  appellee,)  took  general  defence, 
ami  i--iic  wa*  joined  on  the  plea  of non  cut.  I.  Theplain- 
tift'  at  the  trial,  (May  term  1804,)  gave  in  evidence  a  grant 
ilaii'd  the  C5th  of  March  165:,  to  H'illniin  .V/«;«f,  fur  the 
l.intl  tor  which  the  ejectment  v.as  brought.  Also  that  Stone, 
the  grantee,  on  the  13th  of  November  1717,  conveyed  the 
land  in  fee  simple  to  Leonard  Hollyday,  (the  first.)  That 
J/ollyday,  on  the  7th  of  November  1739,  by  his  last  will 
and  testament,  devised  the  land  in  question,  first.  To  his 
son  Leonard^  (the  second,)  intail  male.  Secondly.  Re- 
mainder intail  male  to  his  eldest  son  Thomas.  'Ihirdltj. 
Remainder  intail  male  to  his  third  son  Clement;  and 
Fourthly.  Remainder  in  fee  to  his  two  daughters  Elizabeth 
and  A/an/,  as  tenants  in  common.  That  Leonard  Hollg- 
tlay.  (the  first,)  died  on  the  10th  of  December  1739,  seized 
of  the  land,  leaving  three  sons  and  two  daughters,  to  wit, 
Thomas,  his  eldest  son,  Leonard,  (the  second,)  his  second 
son,  Clement,  his  third  son,  and  Elizabeth  and  Mury,  his 
daughters.  That  Leonard  Holly  day,  (the  second,)  entered 
upon  the  land  by  virtue  of  the  devise,  and  was  seized 
thereof  provt  lex  poslidat',  and  being  so  seized,  and  havinc; 
only  two  female  children,  a  petition  was  presented  to  the 
general  assembly  of  the  province  of  Maryland ,  at  Februa- 
ry session  1756,  and  in  consequence  of  that  petition  ah 
act  of  assembly  was  enacted  during  the  same  session,  (ch. 
\7,)  entitled,  ".#n  act  to  vest  certain  int ailed  lands  therein 
mentioned  in  the  female  heirs  of  Leonard  Holly  Jay,  gen- 
1h  man,  in  fee  simple?'  reciting,  that  "Whereas  Thomai 
Hollyday  and  Leonard  Holly  day,  gentlemen,  by  their  hum- 
ble petition  to  this  general  assembly,  did  set  forth  that 
their  father,  Leonard  Hollyday ',  of  Prince-  George'' s  coun- 
ty, gent,  in  the  year  1741,  died  seized  of  two  tracts  of 
land  lying  in  Culvert  county,  the  one  called  Buzzard  Is- 
land, and  the  other  called  The  Addition  to  Buzzard  Inland, 
the  whole  containing  751  acred,  and  that  by  his  last  will 
and  testament  he  devised  the  same  to  his  second  son  Leo- 
nard Hollyday,  one  of  the  petitioners,  and  to  his  male 
heirs,  and  for  want  of  such  issue  to  his  eldest  son  TJiomat 
Hollyday  and  his  male  heirs;  that  Leonard  Hollyday  had 
only  female  heirs,  who  could  not  inherit  the  said  land  after 
his  death,  whereby  it  would  descend  to  his  eldest  brother 
Thomas,  who  by  letter  had  signified  his  consent,  and  ig 
party  to  the  said  petition;  that  the  said  land  was  unim 


OF  MARYLAND.  169 

jbfoved  at  the  time  of  the  death  of  their  father,  since  which        1807. 
it  had  cost  the  present  possessor,  Leonard  Holly  day,  who 
lives  thereon,  a  considerable  sum  of  money  to  improve  the 
same;  that  the  said  land  had  been  in  the  possession  of  the 
father  of  the  petitioners  ever  since   the  year   1685,  ani 
never  been  claimed  by  any  other  person;  wherefore  they 
prayed  that  an  act  of  assembly  might  pass  to  vest  an  estate 
of  inheritance  in  fee  simple  in  the  said  land  called  Buz- 
zard Island  and   The  Addition  to  Buzzard  Island,  in  the 
i'emale  heirs  of  the   said   Leonard  Hollyday,  in  case  he 
should  have  no   male  heirs  at  the  time  of  his  death,  and 
that   in  default  of  issue  in  the  said  female  heirs,  the  said 
land  to  descend  according  to  the  will  of  the  father  of  the 
petitioners;  and  the  prayer  of  the  petitioners,  in  the  said 
petition  contained  being  thought  reasonable,  the  same  was 
granted,  and  leave  given  to  bring  in  a  bill  according  to  the 
petitioners  prayer;"  and  it  was  accordingly  enacted,  "that 
the  said  tract  of  land  called  Buzzard  Island  and  The  Ad- 
dition to  Buzzard  Island,    containing   in  the  whole  751 
acres,  with  the  appurtenances,  in  Calvert  county  aforesaid, 
so  as  aforesaid  devised  by  the  said  Leonard  Hollyday,  the 
father,  to  his  second  son  Leonard  Holly  day,  and  his  male 
heirs,  shall  be  and  the  same  are  hereby  vested  in  the  said 
female  heirs  of  Leonard  Hollyday,  the  son,  their  heirs  and 
assigns,  to  the  only  use  and  behoof  of  them  the  said  female 
heirs  of  the  said  Leonard  Hollyday,  the  son,  their  heirs  and 
assigns,  forever;  Provided  always,  and  it  is  the  true  intent 
'and  meaning  of  this  act,  that  if  the  said  Leonard  Holly  day 
shall  have  any  male  heirs  of  his  body  at  the  time  of  his  death, 
or  that  the  said  female  heirs  of  the  said  Leonard  Hollyday 
shall   not  have  issue,  that  then  and  iri  such  case  the  said 
land  called  Buzzard  Island  and  The  Addition  to  Btizzavd 
Island,  with  the  appurtenances,  shall  descend  and  stand 
limited  as  by  the  last  will  and  testament  of  'the'said   Leo- 
nard Hollyday,  the  testator,  is  devised,fany  law,  usage  or 
custom,  to  the  contrary  in  any  wise  notwithstanding;  sav- 
ing to   the  King's  most  excellent  majesty,  his  heirs  and 
successors,  to  the  right  honourable  the  Lord  Proprietary, 
his  heirs  and  successors,  and  to  all  and  every  other  per- 
son and  persons  not  mentioned  in  this  act,  bodies  politick 
And  corporate,  their  respective  heirs  and   successors,  all 
such  right,  title,  estate,  interest,  claim  and  demand,  othe 
than  the  persons  claiming  under  the  last  will  of  the  said 
voL.  H.  22 


17*0  r  ^vi>  IN  THE  coruT  OF  APPEALS 

l.Ci  Leonard  //(>'///</</»/,  the  father,  and  this  act,  as  they,  every 

any  of  them,  could  or  mi-lit  claim  if  this  act  had  ne\er 
0  nude."     Aftei\\ard>  /.<  unard,  (the  sccoml)  hail  a  son, 
Leonard,  (the  third,)  who   died   in    the  life-time  of  hi-  fa 
tlirr,  leaving   three  daughters,  the   lessors  of  the  plain  tin*. 
nurd*  (the  second)  on  the  1st  of  February  17<>1,  in  the 
life-time  of  his  son  Leonard,  (the  third,)  by  a  deed  of  har- 
gtiin  anil  sa'.e  duly  executed,  Acknowledged  and  recorded, 
for  a  valuable  consideration,  bargained   and  sold  the  said 
tracts  of  land,  and  all  his  right  and  interest  therein,  to  his 
M>II  Leonard,  (the  third,)  in  fee.     Leonard,  (the  third.)  in 
virtue  of  that  deed  entered  upon  the  land?,  and  was  sei/.ed 
thereof  provt  lex  poxtillut;  and   being  so  seized,  died  some 
time  in  the  year  1793,  Icavihg  three  daughter-,  I-'.Hzabdh, 
Grace  Contce,  (wife  of  tfijittta  Beull}  and  Mar  mart  t  Terrell, 
the  lessors  of  the  plaintiff,  his  only  children   and  heirs. 
Leonard,   (the   second,)  died  in  or  about   the  year  179-4, 
leaving  issue,  two  daughters.     The  defendant  then  gave  in 
evidence,    that  I^eonurd,  (the  second,)  before  and  at  the 
time  of  his  petition  to  the  general   assembly  in  1750,  and 
at  the  time  Of  the  passage  of  the  law,  herein  before  insert- 
fed,  had  issue  t\fro  infant  daui-htors,  Sarah,  born  in  175-4, 
fcftei  wards  married  to  Thomas  Johns,  and   ,'lnne,  born  in 
1755,  afterwards  married   to  Walter  ft.  Cox;  that  in  the 
jrear  1 757,  Leonard,   (the  second,)  had   a   son,   Leonard, 
(the  third,)  who  afterwards  died  in  1793,   without   issue 
jnnle,  leaving  his  father  and  two  sisters  his  survivors;  and 
that  the  youngest  of  the  sisters,  Annr,  was  1.1  year-  older 
than  Leonard,  (the  third.)     That  Leonard,    (the  second,) 
died  in  1794,  and  his  two  daughters,  Mrs.  John*  and  Mrs. 
Cox,  survived  him.     And  afterwards  Mrs.  .A///;i.v,  and  her 
husband,  died,  and  her  sifter,  Mrs.   O>.r,  and  her  husband, 
survived    them;  on  the  death    of  Leonard,  (the  second.) 
without  issue  male,  ^Yalttr  IL  Cox,  and  Anne  his  wife, 
claiming  tinder  the  said  act  of  assembly,  entered  upon  and 
ed  of  the  lands  afoiesaid  in  (he  declaration  men- 
tioned, until  the  death   of  Cox;  that  .fame  Cox  survived 
her   husband,  and  died  s,.j/ed  and  in  possession  of  .-aid 
lands,  leaving  issue   by  ll'ttftrr  ft.  Cox,  a  daughter,   her 
only  child  and  heir,  who  married  the  defendant;  and  that 
the  defendant,  in  virtue  of  his  said  marriage,  on  the  d'-atli 
of  .7/me,  the   mother,  entered  on  and  was  seiy.ed  of  the 
and  yet  is  in  possession  f hereof.     The  plaintiff  then 


OF  MARYLAND; 

prayed  the  court  to  instruct  the  jury,  that  upon  the  afore-        180f. 
said  evidence,  if  they  believed  the  facts  so  ottered  in  evi- 
dence to  be  true,  the  plaintiff'  was  entitled  to  repover, 

CHASE,  Ch.  J.  In  thin  case  the  counsel  have  said  every 
thing  which  could  be  suggested  upon  the  subject  They 
have  made  use  of  ingenious  arguments.  There  can  be  no 
doubt  but  it  has  been  fully  and  ably  argued  on  both  sides. 

The  court  think,  that  the  intention  of  the  legislature  is 

-   O 

to  prevail,  and  that  intention  is  to  be  collected;  from  the 
whole  of  the  law,  and  the  circumstances,  which  produced 
it. 

The  case  is  to  be  considered,  1st.  What  was.the  inten- 
tion of  the  legislature?  2d.  Have  they  used  cl^ar  words 
to  express  that  intention?  3d.  What  is  the  eft'ect  of  the 
enacting  clause,  and  does  it  carry  their  intention  into  etV 
feet? 

The  motive  does  not  satisfactorily  appear;  but   facts  da 
appear  in  the  petition,  as  recited  in  the  act,  which  are,  that 
the  land  would,  by  the  will,  vest  in  Thomas',  that  Leonard 
had  no  son,  but  he  had  Daughters  who  could  not   inherit; 
that  he  had  improved  the  land,  and  had  a  solicitude  to  pro- 
vide for  his  daughters.     It  is  apparent   to  the  court,    that 
Leonard  had  little  or  no  expectation   of  having   any  other 
Children;  he  had  in  view  to  provide  for  the  children  he  then 
had.     Thomas,  his  brother,  knowing  of  the  improvements 
made  on  the  land  by  Leonard,  and  actuated  by  motives  of 
affection,  concurred  in  the  petition.     It  appears  that  the 
operation  under   the  will    was  intended  to  be  suspended. 
The  petition  sets  forth,   that  Leonard  had    "only  female 
heirs,    who  could  not  inherit."     This  was  nothing  more 
than  a  description  of  the  persons  who  were  to  take  under 
the  law.     The  prayer  of  the  petition  was    "to  vest  in  the 
female  heirs"  of  Leonard  Hollyday^  in  fee  sample.     "Fe- 
male heirs"-  meant  the  two  daughters  of  Leonard  Hol/y* 
day,  and  that  the  estate  was  to  vest  immediately  in  them. 
It  appears  that  the  petition  had  in  view  to  provide  for  the 
two  daughters.     The  legislature  granted  the  petition.   Has 
the  enacting  clause  carried  the  intention  into  effect?  "shal.l 
be  and  are  hereby  vested   in  the  said  female  heirs."     The 
intention  must  be  to  vest  the  estate  in  the  daughters  then 
in  being.     It  is  a  plain   designation   of  the   persons   who 
Kcre  to  take;  and  that  an  estate  in  fee  simple  should  Jie 


CA-r>  IN  THK  COrRT  OP  APPKALS 

vested  in  the  two  daughters,  to  be  defeated  only  upon  the 
happening  of  two  contingencies.  11  the  event*,  or  either 
of  them,  had  happened,  the  estate  in  lee -imple  would  have 

('d,  and  let  in  the  operation,  uf  tne  will.  Tl.i-  l! 
tJiat  by  the  act  there  was  to  !>v  a  M.-pcn-iim  of  the  estak, 
Jt  was  the  act  of  the  father  providing  for  his  children,  with 
a  proviso  in  case  of  male  heirs,  or  the  death  of  his  daugh- 
ters without  issue.  Thomas  made  a  greater  sacrifice  than 
Leonur'l. 

What  would  be  the  effect  if  the  construction  contended, 
for  on  the  other  side  was  to  prevail?  It  would  be  putting- 
it  in  the  power  of  one  party  to  defeat  the  provisions  of  the 
ature.  Such  a  construction  could  never  be  admitted. 
The  children  of  Leonard  Holliidayy  (the  third,)  never 
could  have  inherited  under  the  will. 

The  court  are  of  opinion,  that  an  estate  in  fee  simple 
vested  in  the  two  daughters  of  Leonard  Hollyday,  which 
estate  was  to  be  defeated  and  divested  out  of  the  daughter-, 
on  the  happening  of  either  of  two  contingencies. 

First.  If  Leonard  Hollyday,  (the  second,)  left  issue 
male  at  the  time  of  his  death. 

Second.  If  Leonard  Hollyday  should  die  without  leav- 
iwng  issue  maje  at  the  time  of  his  death,  and  his  two  daugh- 
ters should  die  without  leaving  issue. 

yn  the  happening  of  either  of  said  events,  tlie  estate  ii} 
mple,  which  was  created  in  th^  two  daughters,  was 
to  be  divested,  and  the  limitations  in  the  will,  which  were 
suspended  by  the  act  of  the  legislature  for  the  purpose  of 
providing  for  his  two  daughters,  were  to  be  again  put  in 
operation.  And  the  court  are  of  opinion,  that  the  plain- 
tiff is  not  entitled  to  recover  the  land.  The  plaintiff  e:. 
Qepted. 

U      2.  The  defendant  then  read  in  evidence  a  deed  of  t/iort- 
2£d ""£ic!£i$; SaSe    fr°m   Leonard  Hollt/<Jtn/,    (the  third,;    to  Hcnju.n'm 

"  Muckull,  bearing  date  the  2d  of  April  1791,  for  the  tract 
of  land  called  /iuzzurd  Inland,  in  the  declaration  menti- 
oned, to  secure  the  payment  of  i'2179  141,  current  mo- 
ney, with  interest,  on  the  ]>t  of  September  1794;  and  he 
prayed  the  opinion  of  the  court,  and  their  direction  «• 
j'iry,  that  the  plaintiff  was  not  competent  to  recover  l>y 
reason  of  the  mortgage,  unless  he  could  show  that  the  moiV 


OF  MARYLAND, 

gage  had  been  satisfied   previous  to  the   tmie  of  bringing        1807- 
this  ejectment. 

CHASK,  Ch-  J.  The  court  are  of  opinion,  that  the  mort- 
gage created  a  legal  estate  in  the  land  in  linijamin  Miick- 
«//,  the  mortgagee,  and  his  heirs;  and  that  tjic  plaintiff  can- 
not recover  unless  he  proves  the  mortgage  \vj\s  satisfied, 
previous  to  the  bringing  tlu's  ejectment.  The  plaintiff  ex- 
ceptcd,  and  the  verdict  and  judgment  being  against  him, 
he  appealed  to  this  court. 

The  cause  was  argued  before  TILGIIMAN,  BUCHANAN  and 
NICHOLSON,  J. 

Martin  and  Shaaff,  for  the  Appellant,  in  arguing  on  this 
first  bill  of  exceptions,  stated,  that  the  question  for  discus- 
sion arose  wholly  out  of  the  act  of  assembly  of  1756,  ch» 
17,  and  three,  different  constructions  of  that  act  they  con- 
tended for  in  opposition  to  the  opinion  of  the  court  belov/ 
— 1.  That  Leonard,  (2d,)  still  continued  tenant  in  tail,  aa 
before,  with  a  limitation  to  his  female  heirs  in  case  of  his 
dying  without  issue  male,  with  power  of  alienation,  &c. 
and  that  his  deed  to  Leonard,  (3d,)  of  the  1st  of  February 
1791,  barred  the  estate  tail,  and  vested  a  fee  in  the  grantee. 
2.  Or,  that  the  act  gave  the  estate  beyond  the  control  of 
the  tenant,  to  such  persons  as  at  the  time  of  the  death  of 
J^eonard,  (2d,)  answered  the  description  of  his  heirs-  fe- 
niale,  as  purchasers,  including  ajl  those  who,  at  his  deatli 
in  1794,  would  have  been  his  heirs  female,  viz,  his  t\v\j 
daughters,  Mrs.  Johns  and  Mrs.  Cox,  and  also  his  grand- 
daughters, the  children  of  Leonard,  (3d.)  3.  Or,  that  the 
act  gave  the  estate  beyond  the  control  of  the  tenant  to 
such  persons,  as,  according  to  the  meaning  of  the  terms 
•when  the  law  passed  in  1756,  answered  the  description  of 
heirs  female  of  Leonard,  (2d;)  that  is,  females  who  were 
heirs  also,  vr/»  the  daughters,  the  heirs  of- Leonard,  (3d.) 
They  cited  Shelley's  case,  I  Coke,  102,  103.  Shep.  T. 
103.  Clings  Lessee  vs.  J  teems,  1  Hurr.  <$•  M'Ikn. 
463  (a.) 

("a,}  In  Chew's  Lessee  vs.  JJ'tems,  notwithstanding  the  decision  of 
tho  Court  of  Appeals,  a  new  ejectment  \vas  brought  after  the  re- 
volution, in  177«,  and  the  Gineral  Court,  at  October  term  ITS?, 
gave  the  same  judgment,  which  had  bn:n  g-ivcn  by  the  Provincial 
Court,  from  which  there  was  also  an  appeal  by  the  plaiiuili'  to  the 
Court  of  Appeals;'  Uut  Ihut  appeal  was  not  *ctcd  on,  the  case  IIHV- 


CAS!>    IN    TIIK  ((HUT  (TV 


t-'  On  tlic  arrow/  bill  of  exceptions  they  contended,    that 

~    ~  ere  the  title  to  land  i-,  contested  betxfe-n  the  mortgagor 

and  a  strangely  tlie  latter  cannot    set  tip  the   mortgage   to 
defeat  the  recovery.      They  cited  J'oir.  mi  Mort. 
The  Ki  \       •:  '  .    /;,./,/.  (   .  :.      /,„,/<  rv.  //»/- 

ford,  3  Ititn.  1416.      Doc  vs.  Bristiw  .\-  !'•  ^r,   I  7'.  -/?. 
"58,  (note.) 

A'cy,  Mason,  and  Jokn&on,  (Attorney  General,)  for  (he 
Appellee,  on  the  Jimt  bill  of  exceptions,  contended,  1. 
That  the  inheritance  and  estate  \vaa  immediately  ^ested  in 
the  daughters  in  fee  by  force  of  the  clear  words  of  the  act 
of  assembly.  2.  That  if  the  estate  did  not  immediately 
pass  to  tin-  daughters,  the  inheritance  in  fee  \\;i^  vested  in 
them,  subject  to  a  life  estate  in  their  father,  and  liable  to 
b<-  divested  from  them  on  the  father's  death,  leaving  a  male 
licit-  then  li\in^.  3.  That  if  the  inheritance  it)  lev  ua-not 
\  -ted  in  the  daughters  on  the  passage  of  the  law,  it  \ 
an  executory  mant  to  vest  on  a  contingency  tt>  happen 
v'r.hin  a  life  in  be  in;;,  and  like  an  executory  dc>ise  not  ca- 
pable of  being  barred  by  deed  or  common  recmerv.  They 
cited  Hficaflfi/  t  ••>.  Thomas,  1  /.a-.  73.  Jl'alkfr  vs.  Col- 
lier, Cro.  Etiz.  .'-70.  Co.  Lid.  £7,  a.  Princes  case,  a 
Cnhf.  1.  Murrey  rt.  Eylon  fy  Prirr,  T.  Hm^n.  ,"o.  1. 
Shep.  T.  108,  109,  119.  Pow.  on  Conl.  336,  337,  37<»,, 
377.  Pow.  on  I>  77. 

On  the  second  bill  of  exceptions,  they  cited  J)oe  vs. 
Jf'fiarton  b  Dirnn.  8  T.  II.  2.  Doe  r*.  Mn/Je,  •:  '/'.  /,'. 
696.  Jlrnulrong  vs.  /'cine,  cl  «/.  3  Burr.  1901. 

TMK  Cot  »i  conrurred  in  the  opinions  expre-sod  bv  the 
General  Court,  in  both  of  the  bills  of  exceptions,  and 

JUDGMENT  A15IHMLU, 


ToLSON*  .  \M. 


•  'CU.IVM.          --  tl)0   r;rtieral  Cnurt      r.jrrtmnil  bfnii«rlit  by 

",.',"  ("V.M'"^)'"^^  the  appellant  I".-;  c.l   land  ralii-.l  Tuhou's  !'.»'• 

• 

i!ir'iii!<-i1  iua  Kmn<.  •!  from  ihr  cTtiflntr  of  itirrry  nn  \»liich  the  pnint 

canBut  br  lakm  up  a«  »BC..    • 

A  ICT.'  •        1  )>•«<  ihi   ln>  d 

r»n>|»r!t<  i»i  il   »n! 

II  •  tnttl  u  l«ir  moil-  iaml  ilmi.  r,  it  mnj  lie  tacatnl  in  ifir 

cwurlof  tlu«i»e«rr>  ,  miwl  il   ii  i.  I.  .  ,,i>. 

inp 

i',./l,.rf.  645.     2  Slrn.  117.5.       3  Jllk. 

S9<j.  .          1   /'  ,     :  /  .    T.J1.470.     2  ,W\646. 

1  /'.  ir/ii5.  432.     1   I'u.  JI7. 


OF  \IARYLAND.  175 

lying  in  Pnnce-Genrs^^s  county.  The  following  1807. 
case  was  stated  for  the  opinion  of  the  court.  A  tract  of 
land  called  Hunter's  FoHy,  was  surveyed  on  the  29th  of 
November  17<)0,  for  trUlium  Ffunft'.r,  as  by  the  certificate 
thereof  exhibited,  and  by  which  it  was  described  as  "begin- 
ning at  a  bounded  Spanish  oak,  and  running  S.  75  K. 
84  ps.  N.  W.  159  ps.  then  N.  74°  E.  160  ps.  then  N.  W. 
280  ps  to  a  black  oak  bounded,  then  S.  21°  W.  185  ps. 
then  with  a  straight  line  to  the  first  boundary,  containing 
and  laid  out  for  334  acres  of  land  more  or  less."  A  pa- 
tent issued  on  this  certificate  the  10th  of  June  1708,  for 
the  tract  called  IIuiit.fr a  /•'<>////,  describing  it  as  "begin- 
ning at  a  bounded  Spanish  oak,  and  running  S.  75°  E» 
84  ps.  then  N.  25°  E.  84  ps.  then  N.  W.  159  ps.  then  N. 
74°  E.  160  ps.  then  N.  W.  280  ps.  to  a  black  oak,  then 
S.  21°  W.  185  ps.  then  with  a  straight  line  to  the  first 
tree,  containing  and  laid  out  for  334  acres  of  land  more 
Or  less,  according  to  the  certificate  of  survey  thereof 
taken  and  returned  into  our  land  office,  bearing  date  the 
29th  of  November  1706."  The  tract  called  Tolsorfs  En- 
largement for  which  this  suit  was  instituted;,  is  not  includ- 
ed in  the  certificate  of  survey  of  Hunters  Folly,  but  isi 
included  in  the  patent  which  issued  on  the  certificate;  it 
being  admitted  that  there  is  a  variance  between  the  certi- 
ficate and  patent,  and  that  the  latter  comprehends  more 
land  than  the  former.  The  lessor  of  the  plaintiff",  before 
the  institution  of  this  ejectment,  took  up  the  land,  in  the 
declaration  of  ejectment  mentioned,  as  vacant  land  not 
included  in  the  certificate  of  survey  of  the  tract  called 
Hunter's  Folly,  and  he  duly  obtained  a  patent  for  thg 
same. 

CHASE,  Ch.  J.  The  question  is,  whether  the  land  men- 
tioned in  the  declaration  was  not  liable  to  be  taken  up  as 
vacancy,  it  being  excluded  by  the  certificate  of  survey  of 
Hunter's  Folly,  but  included  within  the  courses  expressed 
in  the  patent  for  the  said  land?  Whether  the  defendant 
can  hold  more  land  under  his  grant  than  what  is  compre- 
hended in  the  certificate  of  survev? 

The  court  are  of  opinion,  that  the  grant  is  to  be  constru- 
ed most  favourably  for  the  grantee.  The  lord  proprietary 
could  not  grant  what  had  already  passed  from  him,  with'- 
out  first  going  into  chancery  to  vacate  the  former  grant:' 


fcASES  IN  TJIK  COI'RT  OF  APPEALS 

anil  had  le<s  l.uid   passed  by  (lie  patent  than   was  contain- 
•>il  in  the  en  titu-.iu-,  tlic  defendant's  remedy,  if  any,  inn-- 


N\Tfn,    I 

ha\e  been  in  equity 

Muter  J 


was  entered  fur  the  defendant.  and  the  plain 
tin"  ap|iealed  to  ihis  court,  where  the  (  n>e  \vas  argued  In- 
jure TILO  MM  v\,  lli-cii\N  \v.  and  (J\MT,  J.  by 

T.  Hitchanrm,  for  the  Appellant,  and  by 
Muiwn,  for  the  Appellee. 

It   IX-.MTM     AVI  IHMP.U. 


I)F.CF..MIIF.R.  Nix.iio  JAMT.S  r.v.  (1  UTMF.R. 


Pnm:  .M.i.nrr      AptT.Ai.  from  the  General  Court.     The  petitioner,  (novr 

:  li'.'ri  appellant.  )  filed   his  petition  for  freedom  in  .Innr-.-intntlcI 

•t-\  .  i  t         i     i      t      * 

•  :i.       1  lie   CftSe  V&l    tills  —  A  deed    of   niatii  .....  >- 

M   i),  d.ited    the  1.3th  of  September  17S4,  \va>  c\f(ii(cd  bv 
It.    fiait/i  -cd,    then   of  PrinCt-Georte't  countv, 

A  dfil  i>fin;ii'ii- 

•.i-ion  in.dtT  ihe^jiving  free«loih,    alter  his  death,  to   sundry   of  his  ne<M'0 

Ml  at  i'<  5i,  eh    I,  t  "•  »   . 

t  ,1^1  ,^ii,.  slaves,  amon^  whom   was   the  petitioner,    AVgro  Jaiuc*. 


was  signed   and  sealed  by   him  in  the  presence 
'.utntioilcd  of'  and  acknowledged  b«-fofc  7'.  /%f/,  one  of  the  justiee^ 
Of  tj)e  peace  for  prince-George's  county,  on  the   13th  of 
September  1784,  and  recorded  in  the  records  of  that  coun- 
ty on  t'uc  £7th  of  November  1781.      (iaithcr  by  his  will, 
dated  the   '20th  of  June  1791,  devised  and  bequeathed  as 
follow:  "Item.  I  give  and  devise  to  It.  /jams  all  my  land 
•whereon  I  now  dwell,  and  my  ?e\era!  tracts  or  panels  of 
land  adjoininu;  thereto;  also  all  my  personal  estate,  except 
myjiegroes,  and  to  his  heirs  and  assigns  for  ever."  "Item. 
My  will  and  desire   is,  that  all  my  young  negroes,   born 
t-inre  mv  negroes  were  recorded,  shall  be  absolutely  free 
at  my  death."     The  inventory,  returned  on  f»W,W*.>  , 
iate.  doe-  not  include  any  of  his  slaves.     Ignatius  .'Mien, 
a  witness  sworn  in  the  cause,  'deposed  that  he  lived  with 
Gallhcr  at  the  time  he  sent  for  T.   Ihyd  to  take  the    ac- 
knrv.vlodinm'iit  of  a  deed  to  set  his  negroes  free;  that  Boyd 
tame,  and  drew  the  deed;  that  after  it  was  drawn,  (ialtlitr 
did  sign,  seal,  and   ai  knowledge  the  same  as  his  act  and 
ilerd,  and  did  deliver  the  same   to  Iiin/<l,   requesting  him 
to  have  it  recorded.     That  when    fltiiflier  executed  and 
signed  the  deed  he  was  confined  to  his  bed;  that  he  called 


OF  MARYLAND.  177 

•upon  the  witness  to  assist  him  in  getting  up  in  his  bed  to  1807. 
sign  the  deed;  that  the  witness  Accordingly  did  asVist  to 
raise  Guiltier  in  his.  bod,  and  that  he  stood  by  and  was 
present,  and  di;l  see  Guilhr.r  sign  the  deed,  and  acknow- 
ledge it  as  his  act  and  deed;  and  also  saw  Boyd  sign  the 
same  as  a  witness  thereto.  That  Galther  asked  Boyd  if 
it  was  necessary  that  any  one  else  should  sign  it,  and 
Boyd  replied  it  was  not.  That  Gaither  and  Boyd  both 
observed  then,  that  there  were  several  who  also  saw  him 
sign;  that  Gailhcr  requested  the  persons  who  were  present, 
to  wit,  Benjamin  Jjams,  (who  has  left  the  state,)  and 
Sarah  I/ans,  (who  is  since  dead,)  and  also  the  witness  in 
particular,  all  to  take  notice  that  he  had  signed  an  instru- 
ment of  writ!  112;  to  set  all  his  negroes  free.  The  witness 

O  O 

lived  with  Gait  her  eight  or  nine  years  after  the  deed  was 
executed,  and  frequently  heard   him  declare  that  all  his 
negroes  would  be  free  at  his  death,  as  he  had  them  record- 
ed in  court.     That  the  witness  cannot   write   his  name, 
and  did  not  sign  the  deed  as  a  witness.     That  Robert  Wa- 
ters, another  witness  also  sworn  in  the  cause,  deposed,  that 
at  the  request  of  Gaither  he  went  to  draw  his  will,  it  was 
late  in  the  evening,  and  the  witness  objected  doing  it  that 
evening,  because  he  alleged  it  was  too  late;  but  on  Gal- 
//icr's  saying  it  would  be  short,  he  agreed  to  draw  it.     That 
6r  told  him  he   had  deeded  his  negroes  to  be  free  at 
his  death,  and  that  the  deed  had  been  recorded   several 
years.     That  after  the  witness  had  drawn   the  clause  in 
the  will  in  favour  of  B.  Ijams,    he   told  the  witness  to 
draw  a  clause  in  favour  of  some  young  negroes,  and  when 
the  witness  began,  he  told  him  to  stop,  and  said  it  was 
hardly  worth  while,  the  old  ones  he  had  deeded  free  at  his 
death,  and  the  deed  had  been  recorded  for  several  years, 
and  the  young  ones  will  be  free,  if  not  named  in  the  will. 
But  after  some  pause  he  said,   however,  you   may  do  it, 
and  do  it  in  this  way,  all  my  young  negroes,   born  since 
my  negroes  were  recorded,  to  be  free  at  my  death.     The 
clause  was  then  wrote  as  stated  in  the  will,  dated  the  20th, 
of  June  1791.     That   Gaither  died  about  the  year  1793, 
and   the  negroes   mentioned  in   the   deed  have  been   at 
large  ever  since.     That  he  never  heard  that  any  one  en- 
titled to  Gaiffier's  estate  ever  set  up  any  claim  to  the  ne- 
groes, until  about   two  years  ago.     The  County    Court. 
VOL.  ir.  23 


f^A-F.-  IN  T1IK  COURT  OK  API'}.  At.- 

1807.         ["//.     /•'//-« A/,    Ch.  J.]    nl  April    term  : 

in. -lit  t'.ir  the  petitioner.      The  dilVmlunt   appealed    to  the 

Kn>r.*ni  .,,M-;il  Court:  ami  ;it   M.  04,  the  (u-ni'ral  Court 

(T/i'/sr,  Ch.  J.  /tone  ami  Sprigg,  J.]  Reverted  the  judg- 
ment of  the  county  court,  and  gave  judgment  that  the  ap- 
pellee, the  petitioner,  was  a  sla\e.  O:i  ;:n  nj-peul  to  thi- 
coiirt  by  the  petitioner,  the  ct!  I  at  (lie  1 

term  before  TILGI,  UOLSON  and  (JAN;  i.  J. 

A'i>/  and  Johnson  (Attorney  General,)  for  the  Appel- 
lant, contended  that  (he  judgment  of  the  general  court,  re 
versing  that  of  the  county  court,  must  be  reversed,  unless 
this  court  think  they  are  bound  by  a   rigid  construction   of 
the  act  of  assembly  <»f  1 7.n3,  ch.  1,  s.  5,  by  nhich  it  is  enact- 
ed, "that  where  any  person  or  persons    possessed   of  any 
slave  or  slaves  within  this  province,  who  are  or  shall  be  of 
healthy  constitution's,  and  sound  in  mind  and  body,  capable 
by  labour  to  procure  to  him  or  them  sufficient  food  and  rai- 
ment, with  other  requisite  necessaries  of  life,  and  not  ex- 
ceeding fifty  years  of  age,  and  such  person  or  persons,  pos- 
sessing such  slave  or  slaves  as  aforesaid,  and  being  willing 
and  desirous  to  set  free  or  manumit  such  slave  or  slaves, 
may,  by  writing  under  his,  her  or  their  hand  and  seal,  evi- 
denced by  two  good  and  sufficient  witnesses  at  least,  giant 
to  such  slave  or  slaves  his,  her  or  their  freedom/'  &c.  They 
insisted  that  the  act  does  not  indispensibly  require  that  two 
•witnesses  should  subscribe  their  names  to  the  deed.      That 
an  enlarged  con-truction  ou^ht  to  be  given  to  the  word  evi- 
denced, they  referred  to  the  Slat,  of  Frauds,  29  Cur.   IF, 
r /.-.  3,  *.  5.     Co.  Lilt.  283.  a.  Jacob's  L.  I),  tit.  Evidence. 
Jfintlham   rn.  C/tctin/nd,    1   /•inrr.  414.     2  Eq.  Ca. 
545,  case   15.     Gitlm^'a   Lessee   v».  Half,    1    JIurr.   <$• 
Johns.  14. 

Shaajf  and  T.  Buchanan,  for  the  Appellee,  also  ; 
red   to  the  act   of  1752,  ch.  1.     Shfrfler's  Lessee  vs.  Cor- 
belt,  5  flarr.  <$•  M-ll<n.  .1 1 .1.     IH(lt*tly  vs.  Howard,  et  a!. 
Ibid  321  j  and  the  act  of  1796,  eh.  67. 

Curia  adv.  vitlt. 

At  this  term 

JUDGMENT  AFFIRMF.B^ 


OF  MARYLAND. 


179 


CONTEE  VS.   COOKE. 


1  807. 

DECEMBER. 


Coulee 


AITKAI,  Iron)  the  Court  of  Chancery.  The  appellant, 
by  his  bill  of  complaint  tiled  on  the  24th  of  April  1800, 
stated  that  Richard  Woollon,  on  the  5th  of  August  1791, 
u^-imied  to  him,  for  a  valuable  consider  ation,  a  bond  e^e-«Kn  «erti« 
cuted  by  Benjamin  Burgess,  (since  deceased,)  and  by  apVca^d'Timt'the 
Thomas  Tongue,  his  security,  dated  the  21st  of  April  1789,  *«  wa«"uia"tbe 

...  i    r          I  r  chancellor  act  as  a 

conditioned  for  the  payment  ot  £301   12  9  current  money.  'rilju"alof  ai'iiea* 

J     lioiu    UK-   vrrdicU 

lhat  suits  were  commenced  on  the  bond  in  the  ecneral  Tkere  was  sta"a 

no  -urprise  (in  the 

court,  and  a  judgment  was  obtained  against  Tongue  at^J",1,'^,"*1'^"!^? 
May  term  1793;  but  Burgess,  dying  befo.e  the  judgment  u^y0'^1'!"; 
court,  leave  was  given  to  issue  a  summons  against  rfgnes^ll*"^,'"^"^ 
Burgess,  his  administratrix.  That  the  complainant  was  J]';!"'  'u,e  fuft'/set' 
frequently  applied  to  by  B.  Burgess,  in  his  life-time,  to  re-  £"re  „"{  sufficient 
sort  to  Thomas  Lane  for  payment,  against  whom  Burgess  ctmrttt^nfert^ 
had  a  judgment,  obtai'icd  in  the  name  of  Richard  Harwood^t  iuayi'd."e 
for  his  use,  in  the  general  court  at  October  term  1790.  B.  eireumitanew.  a" 

.  •   -       •  •  with  the  teatiniony 

Burgess,  as  the  complainant  understood,  was  much  involv-0'    °"e    »•»»*•«« 

-ii  •  '•  •*  were  i.ot  laffleienl 

ed  in  debt,  and  alleging  that  he  wished  to  pay  by  this  judsr-10  rtlute  tht:  de- 

r   J      J  J       D    londani's  »iuwcc4 

ment,  the  complainant  was  induced  so  far  to  comply'. 
with  his  request  as  to  go  to  Lane,  and  to  put  himself  to  some 
inconvenience,  expense  and  trouble,  to  receive  tobacco  and 
cash,  to  be  applied  towards  payment  of  his  claim  against 
Burgess.  That  the  complainant  received  a  letter  from 
Burgess,  dated  the  iGth  of  October  1792,  requesting  him 
to  meet  at  the  house  of  Lane  on  the  Thursday  then  next, 
to  settle.  That  the  complainant  accordingly  met,  and  re- 
ceived from  Burgess,  which  he  had  received  from  Lane, 
and  paid  to  the  complainant,  1637  Ibs.  of  tobacco,  at  35s 
per  hundred,  and  £"4  6  1  cash,  which  was  by  mistake 
calculated  to  make  together  the  sum  of  £104  16  6j  for 
which  he  gave  Burgess  a  receipt,  dated  the  23d  of  Octo- 
ber 1792,  and  for  which  sum  Burg  ess  also  gave  a  receipt 
to  Lane.  That  the  complainant,  on  his  return  home  on, 
the  25th  of  the  same  month,  entered  the  payment  on  his 
dav  book  as  of  that  date,  as  it  was  his  custom  to  do  on  his 

V 

store  books  when  he  received  money  during  his  absence 
irom  home;  but  that  it  was  entered  for  the  correct  amount  of 
the  money  and  tobacco,  to  wit,  £103  16  6.  That  the 
complainant,  after  discovering  the  mistake,  and  wishing 
to  furnish  a  statement  of  his  account,  sent  his  account 
against  BurgQsx  and  Tongue,  iu  which  lie  charged-  then* 


180  CAM'>  IN  TIN:  t  of  [i  v  or  AITKAI> 

1807-         with  the  sum  due  mi  the  j°. 

dor  the  date  of  the  1.'<(\\  of  October  17'.'?,  with  the  quanti- 
ty of  tobacco  and  ca.-h,  under  the  heads  of  toi;;it 't  o  ;i< 
and  ca3h  account,  amounting  ti  nether  to  the  sur.i  i  t 
16   6;  but  he   <  at  the.  >!ii:i  for  \\!i!c!i  he 

gave  the  receipt,  and  tin- sum  which  he  •..  n  the, 

arcount  rendered,  \  the    same  : 

and  were  one  and  the  same,  except  the  m^v.l.c  in  1 
culation,  and  that  he  never  did  receive  ho'.h  >tiu.- 
]y,  nor  any  fuitl.t-i-  :>um  in   the   month  of  October    , 
more  than  is  credited   in  hi,  account  again- 
Tongiit,  that   ii   to  say,   .1103    i  •>   and. 

jfongve,  or  any  one  oii  their  account  or  behalf.  '1  hat  ttvr- 
gess  relied  entirely  on  Lane  for  payment  of  tin's  jiu: 
to  the  amount  of  his  judgment  against  Lane;  that  he  \\as 
not  in  circumstances  to  make  payment,  himself  without  dif- 
ficulty, and  that  he  never  was  in  the  habit  of  making 
ral  payments  in  so  short  an  interval,  to  the  complainant's 
knowledge.  The  complainant  states,  that  another  pay- 
ment was  made  to  him  in  February  17(.>.">,  by  the  purchase 
of  a  nej^ro  man  from  Lane,  for  .179  18  9;  and  thai 
gess,  in  his  life-time,  never  set  up  or  claimed  a  credit  on 
the  receipt,  and  on  the  account  rendered  al>o,  as  separate 
payments,  but  acquiesced  in  the  balance,  as  stated  by  the 
complainant;  and  the  complainant  dues  not  believe  ti.;'t  lie 
left  any  paper  or  memorandum  speiifsinj;  MR!)  a  «  laini. 
That  after  the  death  of  7^/r^.s.v,  which  happened  hi-f-in: 
December  1793,  he  received  from  his 

_nes  Cookc,  t!.'  nt,)  on   the    10th  of 

December    17'.V>,  as   a]>]<  IT  account,  the  sum  of 

by  the  purchase  of  a  i.e^ro  boy  at  a  public  sale  of  her 
intestate's  property,  v.hich  v. as  done  by  him  to  acc«: 
date  the  administratrix.  The  complainant  was  applied  to 
at  the  sale  to  consent  to  the  property  being  sold  on  a  cre- 
dit, which  he  as;ieed  to  fur  the  benefit  and  convenience  of 
the  administratrix.  That  he  afterwards,  on  the  ^Jth  of 
March  1 79-), received  from  Tontine^  the  security,  the  sum  of 
J..>7  9  0,  and  from  J.inn,  in  August  1795,  the  further  sum 
«•!  .1153  7  2.  'Ihe  (omplainant  admits  that  the  -• 
sums  amounted  together  to  19  13  8  more  than  the  balance 
due  on  ihe  judgment  against  JM/<<,  out  of  which  the  com- 
plainant was  to  be  paid,  but  he  alleges  that  they  were  not 
all  received  by  him  on  account  thereof,  but  that  he  had  an 


OF  MARYLAND.  18 1 

order  from  Bishop  Claggett  to  collect  and  receive  from  1807. 
Jlgnes  Burgess  a  sum  of  money  due  on  a  judgment  to 
Cla.rge'fi  on  which  acco-iii;  lie  also  received  afterwards 
from  Charles  Cooke.  (who  intermarried  with  /J^ncs  Llur- 
gcss,)  tobacco  and  money  to  the  amount  of  £50  4  0,  as 
appears  by  an  account  exhibited,  by  which  a  balance  ap- 
pears to  have  been  due  from  the  complainant  of  £l  10  5}, 
which  he  has  been  and  still  is  ready  to  pay.  That  after 
the  intermarriage  of  Ji.  Burgess  with  Cooke,  the  personal 
estate  of  B.  Burgess,  being  insufficient  for  the  payment 
of  his  debts,  and  Thomas  Tillard  Inning  a  claim  against 
the  estate,  they  put  into  his  possession  the  papers  belonging 
to  the  estate,  with  a  view  to  his  discovering  any  debt  that 
illicit  be  due  thereto,  and  the  complainant  received  from 
Tiltanl  a  letter  dated  the  £9th  of  October  1795,  stating 
that  a  balance  was  still  due  from  the  complainant  on  the 
sum  received  for  Lane's  judgment  of  £20,  and  de- 
siring payment  thereof;  but  the  complainant  not  ad- 
mitting the  sum  to  be  due,  refused  to  pay  the  same, 
aud  afterwards  a  suit  was  instituted  in  the  general 
court  by  Cooke,  and  Jlgnes  his  wife,  against  the  complain- 
ant, for  money  had  and  received,  in  order  to  recover  back 
the  sum  alleged  by  them  to  be  overpaid.  That  Cooke  and 
•wife  rendered  to  the  complainant  an  account  made  out  by 
I'll  lard;  the  charges  in  which  account  of  £103  16  6,  £79 
IS  9,  £50  5  0,'£37  9  0,  and  £153  7  3,  are  the  same  as 
those  above  admitted,  by  the  complainant,  bat  he  expressly 
alleges  that  the  charge  of  £15  5  G,  charged  by  them  iu 
the  account,  was  for  a  hogshead  of  tobacco  received  by  him 
on  a  judgment  by  Jl.  $•  B.  Conlcc  against  B.  Burge.ss; 
and  that  the  charges  in  their  account  of  £104  16  6,  and 
£103  16  6,  are  for  one  and  the  same  payment  \\\  the  manner 
above  stated.  That  while  the  suit  against  him  was  de- 
pending, the  papers  of  the  plaintiffs  at  law  were  by  their 
counsel  delivered  to  the  counsel  of  the  complainant,  (the 
defendant  in  the  suit,)  to  examine,  and  were  by  him  given 
to  A.  Conf.ee,  who  took  a  copy  of  the  account,  and  return- 
ed all  the  papers  to  the  plaintiffs'  counsel.  The  complain- 
ant expressly  declares,  that  he  delivered  to  his  counsel  a 
receipt  which  he,  the  complainant,  had  obtained  from  Bar- 
bara Lane,  one  of  the  executors  of  T.  Lane,  which  was  a 
receipt  from  B.  Jhirgesa  to  T.  Lane  for  the  said  sum  of 
£104  16  6,  or  near  that  sum,  for  which  the  complainant 
had  given  to  B.  Burgess  a  receipt  dated  the  23d  of  Oqto- 


183  c  ISES   IN    HIE  I'Ol'RT  OF  AITF..U.- 


bor  iri':.  Tliat  (ho  complainant's  counsel,  Jl'Uliumt 

I.-  'i.if.  left  ll.c  court  before  the  eximalioa  of  Octuli.  -\ 
term  ir'J1.'.  ami  (before  the  complainant  saw  him  (hat 
terra,)  engaged  other  counsel,  to  wit,  Ililliain  A'i! 

aoire,  tQrd  fUt  the  papers  into  his  ha:r!-.  inf.  rmii 
that  some  of  tlieiu  belonged  (o  (lie  plaintiff-;  and  the  com- 
plainant is  informed  and  believes,  (hat  (lie  counsel  for  (lie 
plaintiffs,  Jo.'.n  '/'.  Jlawn.  Ksquire,  hud  airr-s  to  the  pa- 
in the  hands  (f  II  lU'umi  A"i7///,  Mx|uiie,  anil  took 
therefrom  such  a>  he  alleged  to  belong  (o  Li.s  client.  Ji':f. 
at  the  dial  court  ihc  receipt  for  jllUl  IG  (1,  or  mar  that 
sum,  \vas  not  to  be  found,  nor  the  account  drawn  oil'  bv 
7'ilfind:  on  \\hith  Mr.  Mason,  on  the  trial,  de(  lined  ;;t 
ut  n,  ;  ld\ed  amjtln.  r  attorney,  iii- 

Ifiidin^  (o  give  testimony  as  to  r  :  but  the    com- 

plainant not  knowing  what  v  me  ».f  the  y<\\  vr-.  ainl 

wishing  for  nothing  more  than  a  fair  trial,   admitted   tlmt 
such  j  a)  ei>  had  tM-i.tl,    to  wit,  a  receipt  from  him  to  JJ. 
.r«s,  and  also  from  11.  1  to  '(  .  J.di.i,  l\.: 

.  rr  111  at  that  -urn,  dated  the  23d  of  October 
and  an  account  drawn  off  by  Tillurd.  That  at  the  trial  the 
deposition  of  Harlura  Lane,  taken  by  consent,  \\u^  read, 
in  which  she  stated  that  the  complainant  had  procured  the 
last  mentioned  receipt  from  her,  (he  purport  of  which  she 
did  not  know,  and  that  the  same  had  not  hee.ii  returned, 
and  that  that  circumstance,  and  (!:•  -in;  other  pa- 

pers, was  artfully  and  unjustly  made  use  of  in    argument 
to  injure  the  complainant's  character,  and  to  infli:> 
determination  of  the  jury     The  complai'K'.nr  solemnly  de- 
clares that  he  did  not  wish  or  desi»n,  nor  did  he  know  that 
any  of  the  papers  were  missing  or  lost  be  ft;  re    he  came  to 
the  trial  com:,  Or'i  ;-er  term  1709,    and    when  he  was  in 
formed  the  papers  were  wanting,  he   admitted  of  such 

i.aving  existed.  He  was  at  court  sevenal  da\>,  and 
at  length  was  so  much  indi«;,«.M  d,  that  he  left  the  court, 
and  wa-  I  the  trial  camy  on  next  day  when  he  was 

absent.     The  cot.iplainaut  ^  informed  that  'J'illurd\. 
aniiiM-d  a>  an  e\ideme  for  (he  plaintiffs,    ha\ing  i!cc!ait-d. 
when  I'xaintni-d  on  the  voir  dire,  that  he  was  not  interested 
in  the  event  of  ('•  imiiji  he  declared  in  thcu-. 

of  his  testimony  that  he  1  .ad  a  claim  on  the  estate  of  Jtiir- 
£C««,  and  hud  obtained  an  older  to  n-u  i\«-  v.i.at  n.i^ht  be 
clue  from  the  complainant  in  pu\  incut  theicof,  whith  ay- 


O^  MARYLAND.  183 

pears  by  his  letter  to  the  complainant   of  the  29th  of  Oc-        1807. 
tober  1795.     That  evidence  was  also  given  at  the  trial    of 
the  above  mentioned  payments  in  tobacco  and  money,  which 
•were  never  made,  in  discharge  of  the  judgment  by  Bishop 
Claggctl,  and  of  the  tobacco   due   to  Jl.  <$•  B.  Contce   on 
judgment,    which    the    complainant    had    no    means    of 
proving,     the    application    thereof  resting    solely    in    the 
knowledge  of  the  plaintiffs;  and   that  a  verdict  on    the 
trial,  was  given  in  favour  of  the   plaintiffs  for  the  sum  of 
£203  4  6  current  money  damages,  and  SI 5  and  1324  Ibs. 
of  tobacco,  costs.     The  complainant  states,  that  he  is  well 
convinced  that  the  claim  aforesaid   would  never  have  been 
brought  against  him  if  B.  Burgess  had  lived,  for  he  be- 
lieves, that  so  fal'  from   there  being  any  account  or  papers 
left  by  him  to  prove  the  justness   of  the  claim,  his  books 
and  papers,   if  produced,  would  show  that  no  such  claim 
existed,  and  that  the  judgment  has  been  unjustly  reco- 
vered. Pravcr  for  an  injunction,  and  relief,  &c.     The  ac- 
counts and  judgments  referred  to  in  the  bill   were  all  ex- 
hibited.    The  chancellor   granted  an  injunction  agreeably 
to  the  prayer  of  the  complainant.     The  answer  of  rfgne** 
Cooke.mm\iChurlcs  Cbo&e,  her  husband,  against  whonfflm 
\*\(erfgncs.  the  bill  was  filed,  having  since  died,)  admitted 
ihe  bond  executed  by  B.  Burgess,  £c.   That  in  discharge  of 
the  bond,  on  the   15th  of  April    1792,  there  was  paid  in 
tobacco,  valued  at  32s  Gd  pr.  cwt.  the  price  agreed  on,  and 
including  the  cask,  the  sum  of  £15  5  6,  and  on  the  23d 
of  October  1792,  by  B.  Burgess,  the  sum  of  £104  16  6, 
for   which   he  obtained   the   receipt  of  the  complainant. 
That  Lane  was  indebted  to  Burgess,   and  that  Lane,   at 
the  request  of  Burgess,  on  the  25ih  of  the  same  month 
and  .year,  in  discharge  of  the  claim,  paid  in  money  and 
tobacco  the  sum  of  £103  16  6;  that  Lane  also  paid  on  the 
25th  of  February  1793,  the  sum  of  £79  18  9,  leaving  a 
balance  due  on  the  10th  of  December  following  in  favour 
of  the   complainant,  and   including  interest,  the  sum  of 
L74  15  8.     That  after  the  death  of  B.  fliirgess,  and  be- 
fore she  obtained  a  true  knowledge  of  the  transaction,  and 
had  ascertained  the  sum  due,  the  following  payments  were 
made,  to  wit,  £50  5  0  for  a   negro  boy  sold  to  the  com- 
plainant on  the  10th  of  December  1793,  £37  9  0  paid  him. 
on  the  25th    of  March  1795,  and  £153  7  3  on  the  29th  of 
August  1795,  and  which  payments  she  afterwards  disco- 


t   ^SES  l.N 


>d  (lie  balance  due   tin  'irmt 

:i  her  deceased  husband.      That   *he.   knows    n      other 
claim  of  the  complainant  on  /  .  ciihei-  in  his 

•'.:.  nf  a-  M.  r  ;:  •  .    any  other  of  his  cmlr 

and  tliat  the  ditt'civii;  .!c  in  di>. 

the  :.!>:ive    n:eiit:<>iied  dc-bt;  that   '.he    i  ompl.iinaiit,  when  it 
\va  red  lie    had  boon    overpaid,  did  not    ivfuse   to 

••fund  on  i  tliat  he  had  oilier  claims,  but  be< 

he  alleged  that  lie  had  not  received  (lie  two  sum>  • 
It',  (i  ;::id  £\f)4    16  f>:  tliat  the  defenda: 
tin'  \vhicli  had  been   unjustly  paid,  v.  ,  I   lo 

brinu  suit  in  her  name,  and  in  the  name   of  (.hnr:> 
\\r\-  husband,  and  at  October  term  17!>9,  by  lii"  indict  of  a 
••i  -MI;   f"i  the  stun  <•'  i   (j,  that 

bcir.2;   the  sum,  including  interest,   \vhi«.h  had   l)ecn   (.-. 
]>aid   and   escccdinu;   ativ   just  claim  of  the   complainant. 
That  she  is  informed  (haf  any  defence  the  complainant  had 
.inst    her  demand,  either  because    he  >••!   with 

more    \w\\\  v  than  received,  or  that  the    tnori'-y  v.  as    to  be 
apl'lii-i!  to  other  claims  due  him  in  any  C 
\~  ^<  >ls  for   the  decision  of  the  court  and  jury,  ami 

ndant,  to  support  her  claim  there,  wasrouMged  to 
resort  to  disinterested  evidence,  according  to  the  rules  of 
law:  lliat  the  complainant  had  there  every  advantage  the 
law  rcr  t  objecting  to  evidence,  and  cannot  hero, 

ber  ;.  roper  evidence  was  rei  i  -at 

Hie  efiect  of  the  verdict.  She  knows  of  no  other  claim  by 
Ihe  complainant  against  her  hu>band's  estate,  to  which  he 
had  a  right  to  apply  any  of  the  j-aymcnis;  she  trusts  tliat 
a  court  of  equity  will  not,  after  an  administratrix  had  [-aid 
monies  supposing  them  due,  when  it  is  discovered  they 
Avcre  not  due,  and  when  a  verdict  and  iml. 
laincd  for  the  same  to  be  refunded,  ln-r  from  ob- 

taining the  benefit  cf  s'ich  Terdict  ant!  judgment.     A  t 
neral  replication  \va^  tMitered  to  the  answi-r;  and  the  Injunc- 
tion^ on  the  motion  of  the  defendant.  \\.i  '  liy  the 

chancellor  on  the  15th  of  February  1803.  A  commission 
issued,  under  which  tc-tim-niy  was  t;.ken,  and  the  accounts 
betweon  the  |  ,  .e  stated  by  the  auditor. 

ie>timonv   laken    was  that   of  Dnv'nl  '•  who 

deposed  that  Charles  Coohe,  who  married  Hie  widow  of  B. 

!>ue  the  institution  of  the  suit  by  him  and  wife 

•gainst  Confer,  came  to  the  deponent  and  asked  him  lo  as- 


OF  MARYLAND.  185 

•sist  hi  in  in  stating  an  account  against  Contce,  but  before  1807. 
they  began  to  state  the  account,  he  related  some  circum- 
stances in  this  manner,  that  they  had  Contee's  receipt  for 
d6l04  odd  shillings,  and  also  Confers  account,  wherein 
there  was  a  sum  credited  of  about  20  shillings  less  than 
the  receipt  expressed,  two  days  after  the  date  of  the  re- 
ceipt, which  two  sums  he  said  were  but  one  payment, 
agreeably  to  the  information  he  had  received  from  his  wife. 
From  that  information  the  deponent  refused  to  have  any 
tiling  to  do  with  it,  or  any  hand  in  stating  the  account. 
In  the  course  of  conversation  with  Cooke,  he  objected  to  a 
sum  charged  in  the  account  by  Conlee  for  commission;  that 
on  his  account  against  Conte.e  the  balance  was  over  £]5t 
but  he  would  take  40  dollars,  and  give  a  full  discharge  for 
the  same. 

The  case  being  argued  by  the  counsel  concerned, 
HANSON,  Chancellor,  at  June  term  1804,  by  his  decree 
states,  that  "it  appears  to  him  that  the  application  of  the  com- 
plainant in  effect  is,  that  the  chancellor  act  as  a  tribunal  of 
appeal  from  the  verdict  of  a  jury.  There  is  stated  no  sur- 
prize on  the  complainant,  whilst  defendant  at  law;  no  dis- 
covery of  testimony  since  the  trial  at  law.  There  is  no 
sufficient  proof  of  fraud.  As  to  that  part  of  the  deposi- 
tion which  has  been  considered  as  evidence  of  fraud,  there 
is  the  answer  of  a  defendant  denying  it;  and  the  establish- 
ed principle  of  equity,  respecting  answers  which  defen- 
dants are  compellable  to  give,  is  well  known."  Decreed, 
that  the  bill  of  the  complainant  be  dismissed,  but  without 
costs.  From  this  decree  the  complainant  appealed  to  this 
court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  TILGHMAJT, 
BUCHANAN,  and  GANTT,  J. 

T.  Buchanan,  and  Magnifer,  for  the  Appellant,  con- 
tended, 1 .  That  the  court  of  chancery  might  decree  against 
the  answer  upon  the  testimony  of  one  witness,  where  there 
were  circumstances  concurring  with  the  testimony.  They 
cited  1  Harr.  Chan.  Pr.  106.  Swig.  L.  V.  504.  Arnot 
vs.  Biscoe,  1  Ves.  97.  Le  Neve  vs.  Le  Neve,  S  Atk.  650. 
8.  C.  \  lres.  66.  2.  That  a  court  of  chancery  might  re- 
lieve against  a  verdict  and  judgment,  where  injustice  had 
been  done  at  law.  Gountess  of  Gainsborough  vs.  Grif- 
VOL.  n.  24 


(    18BS  IN  THE  COURT  OF  APPEALS 


j  /'.    //',  '  ''.  -M.-i.    //!/;«.'. 

/m/i,  Prc.    in  C/ittn.Q  :•>:•>.  Ambler  vi.  ny,/r 
•:   M'.M/I.   /•'»;..    .i«'..   .I/'/,',/'    r.v.    nW.s,  Ibid  HO.      Coclinui 
ftreef,  1  //Wi.  /ty;.  70.  o  J/u/-^.  £**.  90.    2  Afor^. 
£at.  16. 

Johnson,  (Attorney  General,)  for  the  Appellee,  rcl 
to  Cover  vs.  Cfirixtie  «V  .A///,  fu/i.'c  Or?;  and  Garrctson  vi- 
Coif.  1  7/«rr.  4-  ./o/i/i*.  S7(>. 


CHASE,  Ch.  J.  delivered  the  opinion  of  the  court.  The 
court  are  of  opinion,  that  the  facts  set  forth  by  tlie  com- 
plainant in  his  bill  of  complaint,  arc  not  sufficient  to  war- 
rant the  court  of  chancery  to  interpose  and  grant  the  re- 
lief prayed  by  the  complainant. 

DEC  HE  E 


ECEMBER.  GRANT  vs.  RIUSDALK  ct  ul. 

APPEAL  from  the  General  Court.     This  was  a  special 
fii"  ict'on  ()f  (tsfiuinpait  upon  a  special  guarantee  for  ^ooil- 

and  delivered  to  tiackft  and  Grant,  brought  by  the  ap- 
nth.^i..."id  Alices,  (the  plaintiffs  in  the  court  below.)  against  the  ap- 
i.^«"»''v"r»'.;-Pellant-  Tnc  declaration  contained  the  following  counts: 
KV^w'Sr/  Wr  1.  That  the  plaintiffs,  on  the  1st  day  of  February  1799,  at 
th"*ru7r»ni>1  w'i  the  special  instance  and  request  of  (lie  defendant,  had  be- 
S"d  *u>  ^.nii'ii"V  fore  that  time  sold  and  delivered  to  John  Iluckct  and 
S^ndrd  wo  o!  Alexander  Grant  diver"  "nods,  wares  and  ir.erchaiidiy.e-. 

Wh.n-ihr  jurttr- 

•trut  of  tii.-  *••"••  defendant,  in  consideration  of  the  same,    afterwards.  \i. 

tnl    c..urt,  »tifi-  • 

•rner.1  »rr<iict  in  assumed  upon  himself,  and  to  the  plaintifis  then  and  there 

OJtu:ntuit,  «»t  r<- 

lithfully  promised,  that    he  would  well    and    truly  pay  to 

;ern  as  much  money  as   they  reasonably  doservetl  to  have 

J,*ur?t"!  lor  the  goods,  wares  and  merchandizes,  so  sold    and  deli- 

'    //.and  A.  G.  And  the  plaintiff,  aver,  that  they 

C^nb,'iiI|>.rr','x!  reasonably  d»v-ei -\  rd  to  have  for  the  goods,  wares  and  mer- 
HIC ".chandiy.es,  so  sold  and   delivered  to  //.  and  G.  the  sum  of 
n  ,£2000  current  monev.  whereof  the.  defendant,  afterwards, 

. 

&.C.  had  notice.  2.  That  the  plaintiffs,  on  the,  &c.  liad, 
(at  the  special  instance  and  reqn  ••  defendant  be- 

fore that  time,  &c.  made  to  the  plaintiffs  by  the  defendant,/' 
Bold  and  delnrn-'l  ••>  ./.  //.  and  .].  ('•.  divert  oilier  -i'o.l«, 
varcs  and  merchandizes;  the  dofeudant,  afterwards,  fcv* 


OF  MARYLAND. 

in  consideration  of  the  same,  assumed  upon  himself,  and 
to  the  plaintiff's  then  and  there  faithfully  promised,  that  he 
would  well  and  truly  pay  to  them  as  much  money  as  they 
reasonably  deserved  to  have  for  the  said  goods,  wares  and, 
merchandizes,  in  case  //.  and  G.  did  not  thereafter  pay 
and  satisfy  the  plaintiff  therefor.     And  the  plaintiffs  aver, 
that  they  reasonably  deserved  to  have  for  the  goods,  wares 
and  merchandizes,  last  mentioned,  the  sum  of  ^2000  cur- 
rent money,  to  wit,  &c.  of  which  //.  and  G.  and  the  de- 
fendant, afterwards,  &c.  had  notice.     A.nd  the  plaintiffs 
further  aver,  that  //.  and  G.  although  often  afterwards, 
£c.  thereto  requested  by  the  plaintiffs,  have  not  paid  in 
any  manner,  contented  or  satisfied,  the  said  sum  of  money, 
or  any  part  thereof,  to  the  plaintiff's,  but  have  wholly  re- 
fused to  pay  the  same  to   them,  and  still  do  refuse,  and 
have  become  wholly  unable  to  pay  the  same,  and  are  bank- 
rupts and  insolvent,  to  wit,  &c.    Of  all  which  the  defendant 
afterwards,  &c.  had  notice.   3.  That  H.  and  G.  on,  &c.  were 
about  to  purchase  and  buy  of  the  plaintiffs  certain  other 
goods,  &c.  to  wit,  &c.  the  defendant  undertook,  and  to  the 
plaintiffs  did  then  and  there  faithfully  promise,  that  he  would 
well  and  truly  pay  to  the  plaintiff's  as  much  current  money  as 
they  .leserve  to   have  for  the  goods,  &c.   if  the  plaintiffs 
should  sell  and  deliver  the  same  to  //.  and    G.  and  they^ 
should  fail  in  making  payment  therefor.     And  the  plaintiffs 
aver,  that  in  consideration  of  the  promise  and  undertaking  of 
the  defendant,  in  form  aforesaid  made,  they  did  afterwards, 
&c.  sell  and  deliver  to  //.  and  G.  the  said  goods,  &c.  which 
said  goods,  &c.  were  at  the  time  of  the  said  sale  and  deli- 
very thereof,  to  wit,  &c.  worth,  and  the  plaintiff's  deserved 
to  have  therefor,  other  sum  of  £2000  current  money;  of  all 
which  premises  H.  and  G.  and  the  defendant,  afterwards, 
&c.  had  notice.     And  that  the  defendant,  in  consideration 
of  the  premises,    afterwards,  &c.  assumed  upon   himself, 
and  to  the  plaintiffs  then  and  there  faithfully  promised  that 
he  would  well  and  truly  pay  to  them  the  said  sum  of  -£2000 
current  money,  whenever  he  should  afterwards  be  thereto 
requested.     4.  That  the  plaintiffs,    had  on,  &c.  bargained 
and  agreed  to  and  with  //.  and  G.  for  the  purchase  of  cer- 
tain other  goods,  &c.  by  them,  //.  and  G.  of  the  plaintiffs 
to  be  then  and  there  made,  for  the  price  and  sum  of  other 
i£2000  current  money;  the   defendant  then  and   there,  to 
\vit,  on,  &c.  assumed  upon  himself,  and  to.the  plaintiffs  then 


18? 


1807. 


1S8  <  ^SES  IN  Tin 

1807.         and  there  faithfully   promised,  that   if  they    would  delhcr 
the    said   goods,    &c.  to    //.    and    (*.    he    the     defendant 
would  well  and  truly  pay  to  the  plaintiffs  the  said  sum    of 
i  current  money,  in  i  a-e  //.  and  (i.  -'muhlbo  unable 
to  pay  for  the  same,  or  i  tor.     And  the 

plaintiff*  aver,  that  they,  iu  con-idviation  of  the  pren 
afterwards,  &:c.  did  sell  and  deliver  to  //.  and  (i.  t!i 
iMiod-,  \c.  for  the  HIUI  of  1 2000  current  m;»ney,  <.t  which, 
the  defendant  then  and,  there  had  notice.  And  the  plain- 
tiffs aver,  that  //.  and  G.  although  often  afterwards  ; 
to  requested  by  the  plaintiffs,  to  wit,  on,  &c.  have  hitherto 
wholly  refused  to  pay  the  said  sum  of  cC2COO  current  mo- 
ney, and  do  still  refuse,  and  are  become  bankrupt,  insol- 
vent, and  unable  to  pay  the  sum  of  money  last  mentioned, 
or  any  part  thereof;  by  reason  whereof  the  defendant  be- 
came liable  to  pay  to  the  plaintiffs  the  sum  ot  money  last 
mentioned;  and  being  so  liable  the  defendant,  in  connde- 
ration  thereof,  afterwards,  to  wit,  on,  &c.  upon  himself  as- 
sumed, and  to  the  plaintiffs  then  and  there  faithfully  pio- 
itii.-ed  to  pay  them  the  sum  of  money  last  mentioned,  when 
afterwards  he  should  be  thereunto  requested.  Neverthe- 
less, &c.  The  general  issue  was  pleaded;  and  at  the  trial 
at  May  term  1803,  the  following  facts  were  proved  to  the 
jury:  That  one  of  the  Mr.  BcmnnoniS  of  the  house  of 
^idsdale  4"  Beaumonts,  the  plainti'.lV.  was,  previous  to  the 
f>th  of  April  1795,  in  the  I'niled  Males,  and  among  other 
places,  in  the  city  of  Baltimore,  where  the  defendant  then 
resided,  and  where  the  house  of  ILickttl  and  Grant  was 
established,  soliciting  orders  for  merchandise  from  his 
house;  that  the  defendant  wrote  the  following  letter,  on 
the  day  on  which  it  is  dated,  and  sent  the  same  by  i 

ander,  who  went  to  England  with  a  vie\\  of  establish- 
ing connexions  in  the  commercial  line  there  \\ith  the  dif- 
ferent manufacturers,  and  others. 

"Baltimore,  6  April,  1795. 

Messrs.  Kiilsdale  and  Beaumont,  Gentlemen — Hy  the 
recommendation  of  Mr.  Beaumont,  I  take  the  liberty  to 
address  you  by  my  son  Jllcrandi.r,  who  visits  England 
with  a  view  of  establishing  connexions  in  the  commercial 
line  there  with  the  different  manufacturers,  and  other-.  He 
is  concerned  with  Mr.  John  Hacket  of  this  place,  under 
the  firm  of  Ilackel  and  Grant.  For  their  plan,  I  refer  to 
themselves;  have,  therefore,  only  to  add,  that  I  \M 
rantec  their  engagements,  should  you  think  it  necessary, 


OF  MARYLAND. 

any  transaction  they  may  have  with  your  house.     lam,        1807. 


Gntut 

Danl.  Grant," 


$* 

Alexander  Grant,  w-as  one  of  the  house  of  Jfocket  and 
Grant:  and  he  arrived  in  England  some   time   before   the^ 
SOth  of  July  in  the  said  year,  and  delivered  the  letter    to. 
the  plaintiff's,  who,  by  the  directions  of  .#.  Grant,  after  his. 
arrival  in  England,  and   v>hile  there,  shipped  on  the  SOth, 
July  in  said   year,  to  the   house  of  //.  &  G.  goods  to  tha 
amount  of  .£1560  0  10  sterling.     Afterwards,  and   some 
time  in  the  fall  of  the  said  year,    A.  Grant  returned   to 
Jialtimore.  and  in  consequence  of  orders  sent  by  H.  and 
G.  ami  before  Jl.  Grant  weot  a  second  time  to  England, 
the  plaintiffs  shipped  goods  to  H.  and  G.  to  the  amount  of 
£1103  7  0  sterling,  to  wit,  on  the  18th  of  February  1796; 
and    also  that  £.  Grant  went  a  second  time  to  England, 
and  arrived  there  some  time  before  the  23d  of  June  in  the 
year  last  mentioned,   on  which  day  the  plaintiff's,  by  the 
directions  of  //.  and  G.  and  while  A.  Grant  was  iu  Eng- 
land, shipped  to  H.  and  G.  other  goods  to  the  amount   of 
.£689  9  8  sterling;  and  that  the  account  which  they  pro- 
duced contains  a  correct  statement  of  the  mercantile  trans- 
actions between  the  plaintiffs  and  H,  &  G.  and  that  the  ba- 
lance there  stated.,  of  £707  7  2,   was  justly  due   to 
plaintiffs  from  h.  and  G.  who  on  the  SOth  of  April  1 79* 
acknowledged   the  account  to  be  correct,  and  signed 
same.     It  was  further  proved,  that  //.  &  G.  are  insolvent. 
No  evidence  was  given  that  the  plaintiff's  returned  any  an- 
swer to  the   defendant's   letter,   or   that  any  other  cor- 
respondence   took    place    between    the    defendant    and 
the  plaintiff's,  at  any  time  before  the  SOth  of  April  1798. 
The  plaintiffs  further  proved,  that  immediately  after  hav- 
ing liquidated  the  account  with  H.  and  G.  they  required 
payment  of  them,  which  H.  and  G.  declined  and  refused, 
alleging,  that  they  were  unable  to  pay  the  same;  of  which 
application  and  refusal  immediate  notice  was  given  to  the 
defendant  by  the  plaintiffs,  and  a  demand  of  the  debt  was 
made  by  them  of  him,  who  requested  time  to  consider 
thereon,  and  advise  with  counsel,  and  afterwards  gave  for 
answer,  that   he  would  not  pay  the  debt.     The  plaintiff's 
further  proved,  that  after  various  applications  to  //.  and 
G.  and  to  the  defendant,  they  instituted  a  suit  on  the  6th 
of  March  1799,  in  the  general  court  for  the  western  shore, 


190  IN  TIIE  COURT  OP  APPEALS 

18  against  //.  and    6".  and  at  October  term  1800,  obtained 

judgment  a»ain>t  them, and  afterwards  is-ued  an  execution 
-t   them;  from  which   execution  they  were  dis>ch 

bv  an  order  of  the  chancellor,  under  an  insolvent  law  i 

• 

ed  in  1800.  The  plaintiffs  then  applied  to  the  court,  that 
they  would  direct  the  jury,  that  upon  the  facts  so  proved 
and  given  in  evidence,  the  defendant  was  answerable  as 
the  guarantee  of  Ifacket  and  Grant,  and  that  the  plaintiffs 
vere  entitled  to  their  verdict  for  the  balance  due.  ' 

CHASE,  Ch.  J.  The  court  give  the  direction  prayed  for. 
The  court  are  of  opinion,  that  the  goods  were  .-hipped  upon 
the  credit  of  the  letter;  and  that  the.  guarantee  \\as  to  con- 
tinue until  countermanded  by  the  defendant:  that  t 
•were  shipped  upon  the  united  credit  of  Iluckct  and 
and  the  defendant. 

The  defendant  excepted  to  the  opinion  of  the  court,  and 
the  verdict  and  judgment  being  for  the  plaintiffs,  the  de- 
fendant appealed  to  this  court. 

The  cause  was  argued  at  June  term  18C6,  before  TILGH* 

,  Ik  «.  HA  NAN,  NICHOLSON,  and  GANTT,  J. 

Martin,  for  the  Appellant,  contended.     1.  That  the  let- 
wrote  by  the  appellant  to  the  appellees  was  not  an  ab- 

*ute  guarantee.  2.  That  if  it  was,  it  did  not  extend  be-, 
yond  the.  first  shipment  after  the  receipt  of  the  letter.  3. 
That  the  (illiquid  and  probuta\\\i\  not  ai'iee.  Il<-  referred, 
'iie  fifxt  jjt-iuf,  to  lii'lclicr  vs.  Andrews,  1  Sa/k.  -23. 
Marriott  vs.  Litter,  2  l!'i/.i.  Ml.  Joncn  vs.  Cooper,  1 
Cmi-ji.  -:.;r.  Matson  vs.  Wharam,  2  T.  1!.  80.  On  the 
third  point,  he  insisted  that  the  several  counts  in  the  de- 
claration were  defective;  that  the  first  count  was  similar  to 
that  in  JJufc/itr  m.  Jlmlnws,  and  Marriott  vs.  L\stert 
where  the  jadgt  ere  arrested.  That  in  the  xecond 

count  stated  a  pn.n.i-e,  in  consideration  of  having  vAd 
to  //.  and  ('•.  and  the  e\idetue  va^.,  that  the  promise* 
was  made  bffore  the  -..lods  were  sold.  That  in  the  third 
fount,  there  was  no  averment  that  //.  and  G.  did  not  pa  jr. 
for  the  goods;  and  to  the  fourth  count,  that  the  evidence 
offered  was  different  from  that  stated  in  that  count:  that 
it  did  not  pursue  the  letter  of  \i\\-.\\ .iin •••.  \\ liieh  should  have 
been  &et  out  according  to  its  date,  and  iu  the  wuids 


OF  MARYLAND.  191 

of:  and  that  the  facts,  as  they  appeared  in  evidence,  should        1 807. 

be  stated,  as  also  ought  the  continuance  of  the  guarantee. 

He   referred  to  E*p.   Dig.  140,  and   2  Went.  Plead.  555. 

That  there  was  no  averment  in  the  declaration  that  Rids- 

dale.  and  Beaumont,  to  whom  the  letter  was  addressed, 

and  the  plaintiffs,  were  the  same  persons. 

Harper,  for  the  Appellees,  admitted  that  some  of  the  ob- 
jections to  the  declaration  were  well  founded;  and  that  if 
any  one  of  the  counts  were  defective,  it  would  be  fatal,  if 
it  was  not  cured  by  the  verdict,  which  he  insisted  would 
aid  the  defects  urged.  That  if  there  was  one  good  count, 
the  verdict  being  general,  it  was  sufficient;  and  if  the  evi- 
dence supported  any  one  good  count,  it  was  sufficient. 
That  the  second  count  was  a  good  one,  to  which  the  evi- 
dence would  apply.  He  also  contended  that  the  letter 
\vas  an  absolute  continuing  guarantee,  until  it  should  be 
Countermanded. 

Martin,  in  reply,  insisted,  that  where  the  evidence  was 
not  stated,  and  any  one  of  the  counts  in  the  declaration 
\vas  defective,  there  was  some  reason  to  suppose  there 
was  evidence  applicable  to  such  defective  count;  but  that 
if  the  evidence  was  set  out,  and  there  was  any  one  count 
to  which  it  did  not  apply,  it  was  fatal. 

Curia  adv.  vult.   . 

THE  COURT  at  this  term  concurred  with  the  General 
Court  in  the  opinion  pronounced  in  the  bill  of  exceptions, 
but  reversed  the  judgment  because  of  a  defective  count  in 
the  declaration. 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED. 


DE  SOBRY,  Ex'r.  of  TERRIER  DEL.AISTRE,  vs.  TERRIER  DE  DECEMBER/ 
LAISTRE.  *•"""**— ^ 

ERROR  to  th*  General  Court.     The  defendant  in  error,    par0)   evidence 
Lewis  Augustine  Terrier  de  Laislre,  brought  an  action  of  fife""^^^^""^ 

which  willi  are 
made  and  proved  in  France 

A  eoiiy_'it'  :>  wil!  <  x  cut.  ,!  in  Pkila'lelfiftia  and  transmitted  to  the  Island  of  Martinique  by  the  testa- 
tor, certifi  tl  by  »  ni'tirv  public  o('  tint  Is  and,  and  i-'>tir.'in:d  und<T  a  coinnmiion  issue. I  to  lake  tej- 
timoin,  is  suHii  i  ntly  authenticated  by  having  the  certifi  cate  of  th.e  chief  colonial  officer  as  to  the 
v£n:\ture  of  tin-  notary  public;  niicl  \\liith,  with  tlif  lestlmcmy  of  the  testamentary  executor,  returned 
under  the  commission,  i>  s:i!licicntly  proved,  and  in*)  be  read  in  evidence  as  the  will  of  the  deceased. 

A«  to  tho  mattU'.-r  of  striking  OQmmiuioBen  and  issuing:  com;ai>»ious  to  a  foreign  couuti  v  to  take 
antimony 


192  CAM-.-  IN   I  UK  l.nl  UT  OF  Al'i'K  \LS 

1807.  insit  against  Bcnjain'm  tie  A 

Terrier  dc  iMislrc,  (now  plaintiff  in  error.)  The  declara- 
tion  contained  four  counts:  'Yh?  first  for  .£4518  17  7  cur- 
rent money,  for  sundry  matters,  proprrlv  chargeable  in 
an  account.  The  second  for  money  had  and  rn 
The  third  for  money  laid  out,  expended  and  paid:  and  the 
fourth  for  monev  lent  and  delivered.  '''he  drt'i-ndant 
pleaded  non  axsumjmt  and  plcne  adminislraiit;  to  whicii 
the  general  issues  were  joined. 

Vroof.>fih  'ider  eom.Tii«*i'>nt  iKnnt   ta    take  tetti. 

B)onv.  inH  »•' 

Jt  .w  '".r  'h-'  v  r  :rt  ill  a  f  .rvir  i  ci'i'itrv  >t  le^Uy    authenticated,    »nd  how  fir    the 

<.,  •'!••  wholf  prwvMilinijt.  Vc. 

•'!••  nil  of  n  -•  nirt  of  the  flate,  ii  a  «u  ': 

i  u-t  it  ptirp  TH     o  <••• rtit'v 

lr;  hut  if  mmt  be  proved  by  testimony 
tttitry 

tame  strict- 
. 

•nr\   irr  !o  1.-  10  di'irt    nn  h  i'    i» 

pr"i>-r  ••>  i'I.Mi<—  of  inch  la •*  -  i    11,111 1  judge  of  thfir  applicability   loihi/qu.'  t>un 

' 

•  if  •  witnM«  pCfWMltH  lo  h-  road  in  evi-l-nf-  to  impeach  hit  frtvlit   at  to  whit    he    hail 
•worn  n  it'    of  the    I 

but  n 

If  a  0-inirn.t  it  in  w  uin?  .t  \kill  il«-!f  »how  wh-rr  it   i«  to  lx-  riiv  nt^il;  but  if  it  doei  not  atpear  on 

.     1C  it 

r.rd  in  a  pirticuUr  countrr,  it  n. 
pur- 

t  liberty  to  ff>  into  evidence  to  pnive    tliu    intciiti'in    of  the 
Mriir*  .<\  to  «  1 1.  •) 

i  a  f.n-i^ii  "inmtrv  •  i-miry,   and  no    ac« 

i. 

IT  it.  T  hit  c'a'nn 

.  .1  in  .1  in  mu'-r  dif- 
I 

Any  cn-diinr  rnnv  tu'-an  f\  -cutor  fir  a  furn.i.  prnvidt-d  Ii"  tlniw*  hiniwll'  to  h>-  a  cix-di'nr  unili  r  t!i«- 
bm  of  the  country  where  1  min  in   tl.i  (ran  K   < 

e\pfntor,  he  it  aiiiwv  i;  nnd  if  th'-re  w  any  «Urp!m,  il  it  to  (fo  i  •(  the 

••••"etii.iii.  to  tx-  ilistrih'itfd  nre-irdnn;  to  the  l:i\vi  <if  the  roiin'ry  wlii-ru  -h«-  '"»l  itor  «  u 

IVrtonnl   |imp-rt\-  •  ••    r  ih.-  fttator  ii    doinicil    at    tbc    time    ol"  hil 

4r«tli,  ihi   |i  i'.utcd  arrnr'tin;  to  th''  l:nvt  of  th  it  country 

\Vtr.  Miii  nate  b  uutwrrnliiu  lor  drbu,  i>  antwerable  to  all  crc.litoii  alike 

lie  !»>»«  ..r  ili. 

tl  th.-  law*  of  thit  if»tn  trivr  a  pn-f.-reiicr  to  its  eitizrm  in  the  payment  of  the  dcbu   of  a  di  CI-M-M!, 

T  prt  farnia  it  accuunultlc  to  '-he  t.  ttauienUry   executor  only  Tor  the  »urplu«  rvmaining 

anrr,,,y-,r 

If  an  h^ir  |.  .  'i''ir,  hai  nol 

Wllh   thee-l:,  ,    liildi-f 

•  ;tr  on  a  CUM  <  /  ramt 

• 

It  it  :i  i,-. -I,,  r  .  •    -i*d-  in  a  Ib- 

r^ipli  i  i   /«<•;  a.t  i  wtut  n1." 

Cint  i«.  .i^it 

•  mf'irmablr  i  • . 

>  of  a  contract  itii  to  be  .-\  >'-    by 

•ntnmon  rnnirni  artO|it  •},<•  ln*»  of  ih  n  C..IMI'' 

/  'lonii  More  i.  i  m,  «u>  h  *  Contract,  tboti  • 

i    .       .  •  .  •     ,        ,  Frrj'U  •,  tint  a  ci»-h''ir  wit'i 

tory,  who  wako  a  rr  >  tuch 

jury   may  tiud  due  on  a  contract  in.idu    iit 
^ccordinr  '  '  '  nnee 

•  ir  diet  in  a  foreiffn   country,  the 
• 

>e  prr«iiial  e^tateof  a  te«t  i  iiion  amon^  hwco- 

I  id    a 

ii  erc- 

'i    ir 

••d  unU-w  tkry  And  tow  Uw  of  / 

t 
• 

"«4«  to •)•)« •mititry  wi'h   a  vi'-w   to  the  rxec«ti"n    or    |"  rform  in   '•    of  it    in    *• 

..inft  twtb  a>  tu  >t>  C*KUCC  aud  thu  rood.;  ol  i-nUrciuj;    it,  by   Uic  uwt  ol 


OF  MARYLAND. 

1.  In  the  course  of  the  trial  at  October  term  1804,  the  1807. 
defendant  in  the  court  below,  otto  red  to  read  in  evidence 
the  testimony  returned,  with  a  commission,  which  he  ob- 
tained at  May  term  1800,  and  which  issued  on  the  22d  of 
July  following,  to  the  Island  of  Martinique.  This  testi- 
mony was  copies  of  the  will,  and  several  codicils,  made 
by  the  defendant's  testator,  and  certain  interrogatories  and 
answers  thereto  by  the  testamentary  executor,  which  being 
extracted  and  translated,  are  as  follow,  viz.  "Mr.  Lewis 
Jluguslin  Terrier  de  Laistre,  having  produced,  as  a  wit- 
ness, Mr.  Dominick  Pechier,  merchant,  dwelling  in  the 
parish  of  the  Fort  of  the  city  of  St.  Pierre,  testamentary 
executor  'of  the  said  Mr.  Michael  Augustin  Terrier  de 
Laistre,  as  appointed  by  his  will,  deposited  in  the  hands  of 
Messrs.  D.  Le  Blanc  and  Ciccron,  royal  notaries  public  of 
this  island,  the  14th  of  April  1797,  we  have  administered 
oath  to  the  said  testamentary  executor,  and  have  interro- 
gated him  in  the  following  manner:  Infer.  Do  you  know 
whether  the  said  Mr.  Michael  Jiugustin  Terrier  de  Laistre 
has  put  into  writing  his  testament  and  last  will?  Ans. 
Yes.  He  made  an  olograph  will,  of  a  copy  of  which  I  was 
the  depositary  in  my  quality  of  testamentary  executor. 
To  which  said  olograph  will  is  annexed  a  codicil,  likewise 
olograph.  Inter.  Can  you  say  where  and  when  the  said 
will  was  made?  .fins.  The  said  will  bears  date,  Philadelphia 
1st  April,  1795,  and  the  codicil  thereto  annexed,  bears 
date  Philadelphia,  the  29th  of  June,  17J6."  "And  an  at- 
tested copy  of  the  said  will,  and  codicil  thereto  annexed,  of 
the  said  Michttd  Jlugustin  Terrier  de  Laistre,  and  which 
•we  have  hereunto  annexed,  having  been  produced  and  read 
to  the  deponent,  we  interrogated  him  as  follows:  Inter. 
Does  the  paper,  which  has  just  been  showed  to  you,  ex- 
press the  last  will  and  testament  of  the  said  Michael  Au~ 
gvsfin  Terrier  de  Laistre,  to  the  best  of  your  knowledge 
and  belief  ?  Declare  all  that  you  know,  have  heard,  or  be- 
lieve, dns.  I  know  the  said  paper  to  be  the  last  will  and 
testament  of  the  said  Michael  Jluguslin  Terrier  de  Laislre* 
Inter.  Do  you  know  whether  the  said  Michael  Jlugustin  Ter- 
rier de  Laistre,  made  in  his  life-time  any  other  codicils  in 
writing?  Jlns.  I  declare  that  he  made  three  others,  of  which 
I  was  likewise  the  depositary  in  my  quality  of  testamentary 
executor;  the  first,  bearing  date  St.  Pierre,  Martinique,  the 
14th  of  April  1797,  received  by  Messrs.  D.  Le  Blanc  and 
voi.  ii.  25 


CASES  IN*  TIIE  COURT  OF  APPEALS 

I80r.  Ciceron,  royal  notaries  of  this  island;  and  a  supplement  of 
the  same  day  and  year,  signed  by  Messrs.  llonifaye  and 
Ciceron;  the  second,  St.  Pierre,  Martinique,  the  25th  of 
April  of  the  same  year,  received  by  Messrs.  Ciceton  and 
Jf'anter,  royal  notaries  of  thin  island;  and  the  third,  St. 
Pierre,  Martinique,  the  10th  July  1797,  nine  days  before 
)>i>  death,  received  by  Messrs.  Ciceron  aud  Therry,  royal 
notaries  of  this  island. 

-  \ud  a  legally  attested  copy  of  these  three  codicils  here- 
to annexed,  being  produced  and  read  to  the  said  deponent, 
ive  interrogated  him  as  follows:  Inter.  Are  the  papers 
-  town  to  you  the  last  codicils,  and  do  they  express 
the  last  intentions  of  the  said  Michael  ftugustin  Terrier  lU 
Laistre?  Ans.  I  declare  that  the  said  papers  are  truly 
the  last  codicils  and  last  intentions  of  the  said  deceased." 
Annexed  to  copies  of  the  said  will  and  codicils,  as  returned 
M'ith  the  commission,  are  the  following  certificates,  to  wit: 

"Collated,        Ciceron. 

''We,  John  Augustin  JRegnaudier,  commissioner  of  the 
King,  and  procureur,  (attorney,)  holding  for  this  purpose  the 
place  in  the  absence  of  Mr.  John  Aman  Aslory,  commis- 
sioner of  the  King,  titular  seuichal  of  St.  Pierre,  Martini- 
que^ certify  to  all  whom  it  may  concern,  that  the  above 
signature  is  that  of  Mr.  Ciceron,  notary,  dwelling  in  this 
island,  and  that  faith  ought  to  be  given  to  it  as  well  iu 
courts  of  justice  as  thereout,  and  to  all  that  he  signs  ia 
that  quality*  In  testimony  whereof  we  have  signed  these 
presents,  and  thereto  fixed  the  seal  of  this  colony,  where 
stamped  paper  is  not  in  use.  Given  in  our  hotel  at  St. 
Pierret  Martinique^  the  20th  July  1801.  Regnaudier. 

[L.  S-3     Sealed  at  St.  Pierre%  Martinique  the  20th  Jul/ 
1821.  Jacquier." 

The  plaintiff  objected  to  these  copies  being  read  in  evi- 
dence, because  they  were  not  legally  proved  and  certified. 

Martin,  (Attorney  General.)  and  Purciance,  for  the  De- 
fendant, stated,  that  by  the  laws  of  France  there  were  two 
modes  of  making  will* — one  was  a  will  entirely  ia  the 
hand  writing  of  the  testator,  which  was  called  an  Olo- 
graph  Hill)  the  other  one  written  by  a  notary  public, 
iblv  to  the  directions  of  the  testator j  and  that  when 
written  and  read  to  the  testator,  and  by  him  signed,  and 
also  signed  by  the  notary,  it  was  a  good  will, and  was 


OF  MARYLAND.  495 

ed  a  Solemn  T fill.       The  will,  offered    in    evidence    wa8       1807. 
an  olograph  will,  executed   in  Philadelphia  by  the  testa-       *-^v->^ 
tor,  and  by   him   transmitted  to    certain  notaries   public         %• 

....  .  „,.  DetaUtrm 

m  Martinique,  where  it  remained.  The  commission, 
which  issued  in  this  case,  was  to  ascertain  if  there  was  a 
will,  and  to  have  a  copy  exhibited  and  proved  by  the  exe- 
cutor named  in  the  will.  It  was  legally  authenticat- 
ed, according  to  the  act  of  1785,  c/i.  46.  The  origi- 
nal will  could  not  be  produced,  having  been  lodged  in  the 
office  of  a  notary  by  the  testator  himself,  but  the  copy  was 
authenticated  by  the  notary  in  the  manner  directed  by  the 
laws  of  France. 

Harper  and  Boyd+  for  the  Plaintiff,  contended,  that  it 
was  a  fixed  principle  in  the  law  of  evidence,  that  a  wilt 
must  be  proved  in  one  of  three  ways— 1.  The  original 
must  be  produced,  and  the  execution  proved.  2.  An  aur 
thenticated  copy  from  an  office  of  record,  properly  certi- 
fied. 3.  If  an  authenticated  copy  is  not  produced,  then 
proof  that  it  is  a  true  copy  from  the  original,  if  the  origU 
jial  is  in  the  possession  of  a  person  or  officer  not  authoris- 
ed to  record  it.  They  cited  Peace's  Evid.  48,  (notes.)  73, 
(notes.)  Jinon.  9  Mod.  66.  Henri/  vs.  Adey,  3  £astt 
221.  Moiaesvs.  Thornton,  8  T.  R.  303;  and  Stevenson 
vs.  A/ycrs,  \Havr.  $'  Johns.  102. 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  the  cer- 
tificate of  the  colonial  officer  of  the  signature  of  the  nota- 
ry public,  is  sufficient  to  authenticate  the  copy  of  the  will,, 
and  that  the  same  is  sufficiently  proved,  and  may  be  read^ 
in  evidence  to  the  jury. 

2.  The  defendant  also  offered  to  read  in  evidence  the 
commissions  which  issued  in  June  1803,  io  Paris,  Mar- 
liniqite&nd  Hoitrdtuux,  and  the  returns  of  those  commis- 
sions made  at  May  term  1804;  but  which  were  objected 
to  by  the  plaintiff',  because  the  commissions  had  not  been 
regularly  issued.  The  facts  were,  that  on  the  docket  of  the 
court  at  May  term  1 803,  the  entry  is « 'commissions  are  order- 
ed by  consent,  on  the  part  of  the  defendant,  io  Paris,  Marti- 
nique and  BourdeauX)  on  striking  commissioners;  if  the  C9m- 
missions  are  not  returned  at  the  next  term,  it  will  then  hjs 
no  cause  ofcontinua»ce.^  |vThedefendant'iconimisiiotterB 


1«)6  CASKS  IN  Till:  l.oriiT  oi-  AIM  !    M .- 

0 

struck  the  18th  June  1803,  (Saturday.)  See   their  names 
mentioned  in  a  paper  filed."     On  that  paper,  in  the  l.and- 
w  riling  of  tl»e  attoriu-y  m-iH-ral,   (one  of  the   attorney-  I'm 
the  defendant,)  after  naming  four,   persons  as  coninn 
ere  to  each  place,  is  a-*  follow  >:  "An  order  for  tommi-- 
to  our  commissioner*,  unle.--  plaintili'  strikes   coinnn- 
ers  on   Monday,"  (the  20th  June.)     There  was   no  order 
made  in  the   docket  or  in  the  minutes  of  the   tuurt.     The 
court  met  on   Mondav    ihe   COth  June  for  the  pni[- 
making  some  few  entries.     The  jury  had  been  di-.ii. 
t>n  Satuiday  the  18th  J-uue.     The   plaintiff',  and  his 
sel,  and  the  counsel   of  the   defendant,  left  the  court  for 
Jiallimorc  on  Saturday.     The  defendant  remained,  and  on 
Monday  the   £0th  June,  he  obtained  his  commisrion>  fiom 
the  clerk.     Neither  the  plaintiff',  nor  his  counsel,  had  any 
notice  of  the  names   of  the  commissioners  .-truck  b\    the 
defendant,    nor  of  the   order  intended  to  be   obtained    for 
the  striking  commissioners  on  the  part  of  the   plaintiff. 
Defendant,  after  obtaining  the  cour.i.i-  :it  to  1'ml- 

/injure,  where  interrogatories  were  prepared  to  be  forward- 
ed with  the  commissions.     The  interrogatories  and   com- 
missions were  taken  to  the  plaintilTs  counsel,  and  a   pro- 
position made  to  him  to  strike  commissioners,   it  i 
not  approve  of  those  persons  to   whom  the  comiu 
had   issued,    so    that    new    commissions    might    be    ob- 
tained.     The  plaintiff's   counsel    alleged    that     his    cli- 
ent had  left   JJalthnose  for  Elizabeth-Town  in  the   state 
of  yew-Jersey;  that   he    did    not   himself  know    ot 

haracters,  nor  would  he  consent  to  any   thin;:,  but 
would  take  all  legal  advantages.     It  was   then   pro; 

,:ted  on  the  part  of  the  defendant,)  that  the  counsel 
bhould  write  to  the  pVaintifl",  and  the  defendant  would 
wait,  and  retain  the  commissions  until  he  thnt;l<! 
from  the  plaintiff;  but  this  was  declined  by  the  plaintilV's 
counsel,  and  the  commie-ions  were  forwarded.  15ut  on 
the  part  of  the  plaintiff',  it  was  stated,  that  the  defendant 
proposed  to  wait  one  post,  which  the  plaintirt"s  conn-el 
observed  would  not  answer,  as  he  could  not  hear  from  the 
plaintiff'  in  that  time. 

CHASE,  Ch.  J.     The   court   consider  the  order  as   not 
done  in  the  usual  form  for  striking  comnn  but  it 

appears  to  have  been  done  in  the  hurry  of  business  at  the 


OF  MARYLAND, 

rising  of  the  court.     Time  ought  always  to  he  given  for        1807. 
striking   commissioners;   and   an   order  of  court   for  that 
purpose  should  have  been  made.     In  this  case  the  order  is 
general,  that  the  commissions   were  to   issue  on  commis- 
sioners being  struck.     \t  should  therefore  be  executed  in. 
a  i"u -unable  time.     The  commissions  issued  precipitately, 
without    sufficient  time  to  the  plaintiff  to  strike   commis- 
sioners; and  if  the  case  depended   solely  upon  the  docket 
entries,  it  would   be  considered  as  irregular.     But  upon 
the  disclosure  of  facts  stated  in  the  affidavits,  it  appears 
that  the  plaintiff's  counsel  had  an  opportunity  given  him 
of  striking  commissioners.     If  the  court  had  made  an  or- 
der, they   would  not  have  allowed  more  than  five  days  for 
striking  commissioners.     The   defendant,  it   appears,   of- 
fered time — "one post."     Here,  too,  is  a  material  fact  irx 
which  the  affidavits  do  not  agree.     The  defendants  attor- 
ney's affidavit  states,  that  no  specific  time  was  proposed, 
but  generally  that  the  defendant   would  wait  an  answer 
from  the   plaintiff;  but  the  phintiff's  attorney's  affidavit 
states  that  the  time  was  limited  to  tlone  post."  The  court, 
however,   suppose  this  time  was   sufficient   to  obtain  the 
names   of  commissioners',    situated    as   the-   parties  were. 
The  irregularity  of  issuing  the  commissions  was  cured  by 
these  circumstances.     Every  thing   which  tends  to  bring 
the  justice  of  the  case  before  the  court  ought  to  be  done. 
These  commissions  were  returned  to  the  last  term,  when 
this  objection  might  have  been  made;  and   if  the  commis- 
sions hud  been   considered  by  the  court  as  having  issued 
irregularlj;,  they  might  have  been  suppressed,  and  the  de- 
fendant would  have  had  time  to  issue  new  commissions, 
upon  the  same  terms  as  the  former,  "that  if  they  were  not 
returned  at  this  term  it  would    be  no  cause  for  a  continu- 
ance."   But  if  they  had  been  considered  as  illegally  issued, 
and  if  the  plaintiff  thought  that  the  commissions  had  been 
improperly  executed,  he  had  then  an  opportunity  of  coun- 
teracting them,   by  obtaining  at  that   time  new  commis- 
sions upon  the  same  terms  the  defendant  had  obtained  his.; 
for  it  is  an  established  rule  of  this  court,   that  upon  the 
return  of  a  commission,  the  opposite  party  has  a  right  to 
a    continuance   of  the  causa  until  the  next   term.     For 
these  reasons  the  court  are  of  opinion,  that  the  commis- 
sions, and   the  testimony  taken  thereunder;  ought  to  be 
read  to  Uie  jury. 


198  i  ASKS  IN  THE  COURT  OF 


'ims.     T!ic   plaintiff  gave    in 

•  lence,  that  he  is  the  cK  ''  Michael,    the  defen- 

Mtor.  He  also  n.id  to  the  jury  two  original  let« 
;:<.'in  hi»  father  to  liiu:,  dated  at  Rimnlcarj;  in  /Voice, 
and  addrened  to  him  at  7'i/nV,  in  France,  one  dated  the 
CUt  (if  May  I7'.'.\  wherein  the  testator  acknow  led^cd  that 
lie  had  received  a  sum  of  money  for  the  plaintiff,  and  as  he 
could  not  invest  it,  he  proposed  to  take  the  MI  in  of  1 
livres  himself,  at  5  p.  c.  interest;  and  (he  other  kit-  r, 
dated  the  1st  of  AiiuiM  I  TO.",  IckBOwtedging  thftf  he  had 


>cd  for  the  plaintiff  28,000  livres  from    Mrs. 
He  al-o  oftiml    in     evidence,    that    sometime   inthev«ar 

.  the  testator,  and  the  plaintiff,  came  to  J'/ii/adc-'j  //«rr, 
v.  la-re  or  near  to  which  the  testator  resided  till  the  Glh  of 
A  1  1  it  ir'.'f-;  and  that  the  plaintiH*.  from  the  time  of  his  ar- 
rival at  Phifadetpliia.  until  the  [-resent  time,  hath  a!  u  sirs  re- 
sided .vithin  Uie  !'.  >'.  Hi-  aUo  read  in  evidence  a  memoran- 
dum, in  the  hand-wiiting  of  the  testator,  made  in  a  memo- 
randum book  kept  liv  him,  \\hich  meooranda0  bears  date. 
on  the  30th  of  September  1703,  and  is  as  follow?,  \\i. 
"The  four  servants  given  to  my  eldest  son  by  his  marriage 
contract,  to  wit: 

Jirnno,  a  mulatto,  hair-dre.-^er,  estimated  at  4.>(:0 

rfntoine,  my  domestic  itair-drc^ser, 

I.iv.   7oOO 

Doth  of  whom  are  dead. 
a  cook  —  sold,  2850 

,  a  washer-woman,  £(;<»o 

-          4850 


N.  P.    He  re«'irnrd  to  mr  the  nbove  mpntionrd  foi .< 

i.artnie    from  M(irlinitjiir;    lor    wh'uh    !-aiil 
'!,i-  sum  of  -40. UK)  livres,  which  he 
.1  to  !>o  drlixr-ird  t-i  nn-  at  Jioitrdtovx,  before  his  de- 
parture for  Xorth  .-fiiifrint,    my    estate   is  responsible    to 
him.''      He  aUo  i«-ad  in  evidence  a  letter  fn;m   the  ie>tator 
td  him,  bfarini;  date  at  Ph iltnlcljihin.    on  the  22d    ot 

.  :nid  addre>sed  to  him  at  Trnilw,   \vt..    4kl  have  not 

.-n  able  to  employ  my-elf  in   making   use   of  the  bill 

of  exchange  of  170  dollars,   (3440  livrc=,)    en //flfre,  but 


OF  MARYLAND; 

JT  will  attend  to  it  as  soon  as  my  health  permits  me  to  go  1807. 
out."  Also  another  letter  from  the  testator  to  him,  bear- 
ing date  at  Philadelphia,  on  the  15th  of  October  1795,  and 
addressed  to  him  at  Trenton,  of  which  the  following  is  an 
extract: — <;I  remitted  to  St.  Claire  Claudcl  yjur  bill  of 
exchange,  drawn  by  Moist/,  for  170  dollars,  (3440  livres,) 
that  he  might  receive  payment  and  pass  it  to  the  credit  of1 
my  account."  He  also  gave  in  evidence,  that  all  the  afore-1 
mentioned  letters,  and  the  memorandum,  are  in  the  hand- 
\vriting  of  the  testator,  and  that  the  letters  were  by  him 
transmitted  to  the  plaintiff,  and  duly  received,  according 
to  their  respective  dates  and  addresses;  and  they  were  of- 
fered and  given  in  evidence,  to  prove  the  debt  due  to  the 
plaintiff,  for  which  this  action  is  brought,  as  stated  in  the 
account  by  him  filed.  He  also  gave  evidence  that  the  se- 
veral sums  of  livres  mentioned  in  the  said  letters  and  me- 
morandum book,  were  of  the  value  of,  and  amounted  in 
the  whole  to  the  sum  of  S9628  63  current  money  of  the 
United  Stales;  and  that  the  usual  and  legal  interest  of  mo- 
ney in  France,  and  her  colonies,  was  at  the  times  afore- 
said five  per  centum.  He  also  gave  in  evidence,  that  the 
testator  departed  this  life  on  or  about  the  20th  of  July 
1797,  and  that  the  defendant,  as  his  executor,  did,  in  the 
month  of  October  in  the  same  year,  receive  in  to  his  hands 
money  belonging  to  the  estate  of  the  deceased  to  the  amount 
of  813,092  68  current  money  of  the  U.  S.  out  of  which, 
he  claimed  an  allowance  for  disbursements  and  'commissi- 
ons, to  the  amount  of  S1200  07  like  money,  leaving  in 
his  hands,  subject  to  the  legal  claims  against  the  estate  of 
the  deceased,  the  sum  of  SI  1,892  61  current  money.  The 
defendant  then  gave  in  evidence,  that  the  testator,  in  his 
life  time,  duly  executed  certain  wills  and  codicils,  which 
•were  made  and  executed  respectively,  at  the  respective 
times  and  places  therein  respectively  stated,  viz.  "I  Mi- 
chad  j&tigtutw  Terrier  de  Laistre,  aged  61  years,  general- 
ly resident  in  St.  Pierre,  in  the  Island  of  Martinique,  but 
now  at  Philadelphia,  in  Pennsylvania,  one  of  the  thirteen 
United  States  of  America,  being  desirous  of  making  known 
to  my  children  my  final  intentions,  have  made  and  writ- 
ten, with  my  own  hand,  this  my  last  will  and  testament, 
to  which  I  particularly  enjoin  my  eldest  son  to  manifest  his 
respect  by  an  exact  performance  of  its  contents;  hereby- 
revoking  all  former  wills  ami  codicils  by  me  at  any  time 


('  ^S1  3  INI  HI  i   OF 

lore  made,  ami  divlarin:;  thU  to   h.-  al-me    -;,t,i  I  and 
'id.v     The  be:  .;,-,,. 

.  are  tin1  following:  7th.  k'I  ^iveand  !)fi|uciit!i  unto  my 
natural  M>n  ('firry,  tion-  about  M-.  ,  of  a^c,  ami 

:  from  his  clnlrlliootl  at  AY.  /'icrrc,  in  .l;'//7/myw,  by 
./I///  />/»//<•  Di'-'f/t^i/'i/,  t!n>  sum  of ///>(/  thcutxdiiit  livres,  colo- 
nial money,  payable  on  the  partition  of  my  relate.  irilc-,  it 
should  please  better  my  i  imit  him  a-  co-heir,  con- 

formably to  the  tenor  of  the  acts  parsed  bv  t '.c  nation. 
sembly  in  f,ivo-ir  of  illegitimate  cliildren;  tlu-n  ami  in-inli 
I    \\ill   and    direct  tliat  he  have   hi.s   jiropordonable 
share,   according  to  the  ri^ht  vested  in  him  \)\  \i\\\\  if  my 
ilit  not   tht.iM*.    rather  that  the  said   sum  of  50,000 
>ho!ild  bo  paid  him  out  of  the  surplu-  of  inv  estate, 
af'.'i    ]'-i\:inin  of  (If')t-i,  &c.      Enjoining  liim  \\-\n-.  ,-..\.T  in 
to  bi-ar  the  name  of   Chen/  Terrier.'11     lOfh.    "I 
to  and  appoint  S/nlhony  J'irtx.  my  a.^cnt  at 
i  iini>{iir,  executor  of  this  my  la-t    uill    and 

.      "And  in  case  of  the  death  or  ab.-encc  of 

.id  Anthony  JY/w,  I  constitute  and  appoint,  in  his 
place,  my  friend  Mr.  ('rossous,  merchant  <»f  Mttrfi tuque, 
-  him  to  accept  this  charge,  with  the  same  indemnifi- 
cation  as  aforesaid,  and  thereby  ^ive  me  this  last  maik  of 
friendship."  llth.  "As  to  all  the  rest  and  residue  of  my 
estate,  \viiPtlnv  real  or  personal,  debts  due  me,  &c.  which 
I  MI:IV  leave  in  .  J.-ii' ii'-/i,  I  constitute  and  appoint  Messrs. 

:n,  father  and  son,  executors  thereof,  to  admini- 
on  that  property  only  of  w'n'u  ;i    I   m  iv  di  -  d    in 

.7///' i-//v/,  conformably  to  my  intentions  exorc-sed  in  thiii 
i:iv  last  uill  and  testament,  of  which  I  have  left  them  an 
authenticated  copy."  12th.  "I  hereby  name  and  con-ti- 
tute  my  eldest  son,  Lewis  *Quz*i.illn  ttl< 

•r.,  as  an  heir  in  my  succession;  and    I  !  and 

direct,  that  after  my  decease,  a  true  and  faithful  invenfo- 
ry  be  made  of  all  my  property,  out  of  the  amount  of  which 
pro;i"r!y,  all  the  bequests  generally  i'\pre-.».-d  in  the  pre- 
sent te-tamt:nt  shall  be  faithfully  dischar^.-d;  and  in  case 

>n>/  Mark  Terrier  <lc  Lmslrr,  younger  brother  of  my 
said  eldest  son,  should  not  please  to  divide  with  him  tho 

•  of  their  mother,  conformably  to  the  schedule  I  have 

:ed  to  this  my  la-<t  will  and  testament, in  which 
dule  his    moiety  is   clearly  di'-i^n.u.-  I. 
rather  to  recur  to  the  general  inventory  which  will  be  made 


OF  MARYLAND.  £01 

after  my  decease,    then  and  in  such  case  T  will,  and  most        1807. 
expressly   direct,  that    the  sum  of  40,000  livres,  reserved 
from  the  portion  brought  by  me   in  my  marriage  contract, 
aji;l   also  the   sum  of  2,000  livivs,  which    1  am  entitled  to 
claim  and  receive  from   my  wife's  estate,  by  virtue  of  the 
said  marriage  contract,  the  said  sums  amounting   in  all  to 
the  sum  of  42,000  livres,  be  deducted  and  reserved  for  my 
grandchild,  Jlugustin  Paid  Jlnule,    son  of  my  eldest  son, 
who  shall  possess  and  enjoy  the  same  on  the  surety  of  his 
judicial    oath,  until  his   said  son  t/htgustfn  Paul  Ei.-dlf  at- 
tain the  age  of  21  years,  or  be  married;  and  in  case  this  re- 
serve should  give  rise  to  any  legal  difficulty,  I  then  give 
and   bequeath,    purely  and  simply  to  my  said  grandchild, 
the  sum  of  42,000  livres,  to  be  employed  and  disposed  of 
as  above  directed,  and  payable  out  of  the  surplus  of  my  es- 
tate, after  all  my  debts,  and  the   bequests  herein  contain- 
ed, shall  be  discharged.     Authorising,  moreover,  by  these 
presents,  my  eldest   son  to  renounce   my  succession,  and 
reiai;!  the  portion  brought  by  him  in  this  marriage  contract, 
with. tut  returning  any  tiling  to  the   general  stock;  he  also 
claim:;):;-  from  my  estate  all  that  I  lawfully  owe  him,  whe- 
ther for  the  different  sums  which,  on  my  last  voyage,  he 
caused  to  be  paid  me  in  Ffimc.p.  by  Madame  Jlitbiri^  or,  for 
the  four  domesticks    f  gave  him  by  the   said  contract,  and 
which,  before  his  departure  from  Martinique.*  he  delivered 
a.v.mm  and  risk  t;>  Mr,   l"iau  my  attorney.      13th. 
'•1  c/wstitute  and  appoint,  as  heir  of  my  succession,  my 
.  -st  son,  Anthony  Mark  Terrier  de  Laistre,  whether 
he  prefers  to  rely  on  the  partition  of  the  property  possessed 
in  common  by  his  mother  and  myself,  according  to  the 
statement  [  have  subjoined  to  this' my  last  will  ond  testa- 
ment, in  which   his  potion  of  the  maternal  estate  is  dis- 
tinctly marked  out,  or  chooses  rather  to  recur  to  the  gene- 
ral inventory  to  be  made  after  my  decease,  out  of  which 
his  portion  will  be  ascertained  by  law.     I  also  will  and  di- 
rect, that  the  share  accruing  to  him  from  my  estate,  shall 
.if  immovable  property,  and  my  will  and   mean- 
ing is,  that  the  said  immoveable  property  be  not  aliened  by 
him  under  any  pretext  whatever,  in  order  that  it  may  de- 
scend to  his  issue,  and  in  default  of  such  issue,  be  equal- 
ly divided   amoiv;    the   children  of  his   elder   brother;  this 
disposition  not  being  regarded  as  an  entail,  but   as  a  pru- 
dential and  safe  m,;de  of  securing  some  part  of  my  estate 
VOL.  ii.  26 


203  -  IN  'HIE  cor  RT  or 

ISO?".          in  in\ -  crrnmlch'ddren."       14th.  "As  th« 

*—v~>       mu'iratfd   bv  the  republic  (in    (lie    - 

i 

-  rain  the  testator  from  the  f:  !  bv  \\ill  of  i 

DeLaixre 

than  one  sixth  part  oi  his  possessions,  and  allot  the 

the  rer.  -  natural   '  n    is 

im:  r  !!!<•  to  a-    ivlain  at  thi<  jiinctutv   ti.e  :M:I  >unt 

(.1"  i  't\,  I  \-\\\  an:l   direct,  thai    in  c  a-<-  niv  two 

^ii'nnav  >.«:,-;,  or  any  one  ol  '.'I-      .  M  adhere 

to  the  ]  M  -r  of  (lie  law.  in  <>;»;, •i-iii-n  to  the  d:- 

sitions  contained  in  this  inr  last  will  and  te^ament,  then 
and  in  such  case,  that  my  natural  son  C/tcri;,  already  a 
parli'-ular  legatee  bv  the-^e  pre-  I  my  lour  natural 

daughters  called  .  -:d    Mar- 

guerite, also  legatees  iid.  1)0  all  five  called  in  as 

co-heirs  in  my  Micce-non,  each  re.-|>ei-ii\clv  renouncing  f'» 
liis  or  her  respective  le'_r:icv.  nm\  drauin^  from  my  estate 
h  proportionable  >hare  a>  the   lav.  -  ii*' 

the   one  sixth  of  my  property,  of  whrch    I  may  fi 
pose,  I  will  and  direct   tha1  'tied    by 

the  inventory,  the  amount  of  the.  berpie't  made  to  • 
tive  Scplria,  be  deducted  (hcrefrmn,  and  p-iid   her   in  full, 
ivith  all  possible  dispatch,   wltich  beqiK^st  I  hereby  confirm 
and  ratify.     And    I  also  will  and    direct,    that  tiie  sun 
of  the  one-sixth,  after  such    deduction    made,    be    divided 
among  the  other  legatees  named  in  this   my  last   will    and 
testament,  such  share  accruing  to  each  aft  is  proportionable 
to  the   amount  of  his  or  her   respective    Iei;n  -<:cl* 

are  my  last  desires  clearly  expressed  in  the  pre-mt  d 
roent,  written  with  my  own  hand,  and  which  I  fully  con- 
firm and  ratify,  after  tuning  attentively  peru-rd  and  repc- 
rttsed  the  same.  Done  and  signed  by  1ri:i'.ic:i«e.  and  one 
copy  to  be  deposited  with  Me -sis.  J)r  Su/:.  lather  and  «on, 
appointed  bv  these  piw-i'n 

tratiun  of  that  alone  of  whiih  I  may  ilie  possessed  i:. 
ca:  1  transmitted  to  Jl/arftnt  ih-rt-loi' 

vith  a  notary;  and  a  third  endo-i-d  in  my  port  folio,  all 
three  copies  brintr  sealed  with  three  seals,  bearing  the 
slamp  of  m\  '-n  in  the  mai^in.  at 

PhUftilrf/ihiu,  in  /}ni»^i'rtini(i,  one  of  th--  Ird 

Stalts    of  .97iirri((i,  th  -  iii>t  «lay  of  April,    in  the  year  of 

our  Lord  ir  ;  ."     \  roking  the  legacy  to  51op/ 

confirming  and  ratifying  all  other  part-  of  hi-,  \\ill.  Signed 
JWlhof  June  179G.  "Terrier  de  Laid 


OF  MARYLAND.  gQ3 

will  and  testament   of  Michael  Augustin  Terrier        1807. 
(lc,  Luhtre,  done  in  the  presence  of  Messrs.  Ciccron  $'  Le 
Jllanc,  notaries  of  M.  Pierre,  in  the  Island  of  Martinique. 
On  this  14th  day  of  Apiil   1797,   about    11  o'clock  in  the 
jnorning,    we  tlie  undersigned  notaries   attended   Arichaet 
rfugustin  Terrier  tie  Luhh P,  chevalier,  &c.  resident  in  the 
city  of  St.  Pierre,  &.C.  aged    64  years,    la'.vful  son  of,  &c. 
who  being  confined  to  his  bed,  infirm  of  body,  but  of  .sound 
and  disposing  mind,  as  it  hath  appeared  to  us  by  his  seve- 
ral questions  and  observations,  and  wishing  to  arrange  his 
temporal  affairs  before  the   moment  of  his  death,    which  is 
uncertain,  requested  us  to  receive  the  subsequent   codicil 
and  expression  of  his  testamentary   desires,  which  lie  dic- 
tated   word    for  word   in   the    following   manner:"    The 
bequests    material    to    be    mentioned  «ure    the  following: 
8th.   "The   said   tes'ator  gives   and   bequeaths   unto   his 
natural  son  Chert,  about  15  years  of  age,  and   raised  from, 
his  infancy  in  this  island  by  Madame  Duquesnay,  the  sum 
of  50,COO  livres  colonial  money,  to  be  appropriated  to  his 
subsistence  and  education;  begging  his  executor  hereinaf- 
ter named  to  transmit  the  funds  requisite  for  the  payment 
of  (lie  said  sum  to  Mr.  Benjamin  De  Sobru,    merchant  of 
JJa'tinwrc,  who  has  had  the  goodness  to  act  the   part  of  a 
father  towards  him  during  the  absence  of  the  testator;  en- 
treating him  therefore  io  continue  the  same    parental  care, 
and  with  the  sum  which  he  bequeaths  to  the  said  Cheri,  to 
place  him  in  a  situation  that  may  ensure   to  him  a  life   of 
•tranquillity  and  cast-;  enjoining  moreover  his  said  natural 
son   to   continue  through   life  to  bear  the  name  of  Cheri 
Terrier.      The    said    testator    also   gives    and   bequeaths 
to   the    said   Cheri  his  wardrobe,    rings,  jewels   and  pri- 
vate fire  arms,    which   shall   be   found   belonging   to    him 
after  'his   deceasi;    reserving    only    from    the   number   of 
his  jewels  his  diamond   cypher  and   repeating  watch,  of" 
which  he  has  disposed  by  his  will  of  the  1st  of  April  1795. 
Hereby    ratifying  and    confirming  the   said  disposition." 
llth.   "The  said   testator  gives  and   bequeaths   unto  his 
friend  Benjamin  De  Sobry,    merchant   of  Baltimore,  all 
his  moveables  and  effects,  of  what  nature  soever,  of  which 
he  may  die  possessed  in  America;  and  also  whatever  he  may 
discover  to  be  due  to  him;  charging  him,  however,  by  these 
presents,  with  the  payment  of  his  debts  in  the   said  conti- 
nent, [duns  le  (lit  continent,^  if  any  there  be*  Hereby 


•01  (  iSB  -  IN  'I'm:  COU1  r  <>r  ATI  EALS 

1807.       fullv  I'M  *ell  to  recover  whatever- waj 

•  to  liiin,  i,  without  be- 

,1  .uTo'iiiiable    l.'i-  tin-     s.:iti 
\,-:."      I  '.    ••Tli.-  uui  •••-•  itoi   i    tn<  -  iirnl  in>;. 
iieirs  in  . 

IHiti»>e,  as  well  as  liii  volition',  called  .//<///'  'J'tr- 

rier  tic  Luistrr;  hi-reliv   constituting  and    :ij  i:  .  nt 

his  uni\iT-.il  !<•  equal  shairs    i;i  In-  ,<--i- 

t.;i;  strenmiu>!y  recomme  n!;n-  to  tl.i-m  t.p  |  . 
n v  between  themselves,  and  respect   fur  tl,e  jn 
cil,  wliirh  the  said  testator  wills  and  directs  s-lumhl  betnl- 

•  cuted  in  all  aiul  eveiy  part.   And  his  v. ill 

-.  that  the  part  and  portion  of  tint1 
.  uho  shall  first  die  without  mvc,  ^hull  ien,;.iii  to  (he 
survivor."      15th.  0"The    said  testator    hei  iluies 

and  appoints,  as  his  executor,  Dominick    • 
of  the  city  of  St.  l'ierre<  of  v.hoin  lie 
this  j^oud  office.     And  in  consideration   that    t: 

•  nitoi  i>  i  .\   aitcndetl   by    some.    tnn.L:  1 
deraiiL'einent.  lie  iie^s  him  to  accept   the   bt                     'di  he 
now  inaki;-,  him.  of  tin-  sum  of  1.1,200  livn  -              i]    mo- 
ney, \\hit !.                   lie  may  take  before  tin.- 

n  tn  tlu¥  heirs;  the  -;ii<i    ti-;;i!n:  . 
ing  himself  of  all  his  estate,   in  order  to  invest    him    v.  ith 

me.  from  the  day  of  his  den  is,-,  conformably  t< 
lorn.''     16th.    "Ti»e  said  testator  revokes    all    other   Mills 
and  codicils)  by  him  heretofore    made,  drchtiiir. 

and  valid,    as  uei!    a-  his    \\ill    and    • 
11  with  his  own  hand,  of  the  1st  c.f  Aj:iil   in1."),  fully 
g  MM!  confirming  tl.e  sai, 

i  ABtl  thing*, therein  contained^  < 
UM  changes  madd  .  .iatcd  in  the   j.K-mt  c< 

ami  the  said  testator  also  wills  and    dircits,    tl.. 

'.ient  shall  be  joined  to  the  |  dicil,   h> 

"his  hai'.i!^  \\hri:e\ei  he  s'.ull  please    ti 
••••  hich  has  been  remilariv  maiked  ne  variilur,  by 
the  above  mentioned  notaries."     ktl)one,"  &c. 

Signed,  Ten i-rd>   f.aiitre. 

Cicrnm  t>'  J<c  J>I<-      • 
Col: 

Other  codicils  of  the    Mth  Apiil    1707.    25\\, 
inc.  :»rul  10'h  July  1797,  making  -on.e  ti  iliij.»  allei. 
tnd  coufirminj;  other   wills  and  codicils   nut  alteud,  \c. 


OF  MARYLAND.  205 

The  defendant   also  gave  in  evidence,  that  the  executor        1F.07. 
testa  therein   named,    that  is  to  say,    Dotitiniyiie       ^^ 

J'Mcf;i<-i\  residing   in  the  bland  of  JUtirtinii>iic,    did   take       ^Lut* 
upon  i.iiaselu,  after  the  death  of  the   testator,   the  burthen 
of  the  execution  of  the  wills  and  codicils,  according  to  the, 
laws  ul   the  Fi'f.ncfi  go\ci •m.'icnt,  in  force  and  etlecl  in  that 
island:  and  that  he  did  on  the  24th  of  July  1707,  write  to 
the  defendant  a  letter,  and  stud  the  same  with  a  copy  ufa, 
certain  part  of  the  will  or  codicil,  dated  the  14th  of  April 
.  to  enable  the  defendant  to  cany  into  execution  that 
partct   the  will  in  which    the    ddii.dant   was  interested. 
'I  !.e  defendant  also  gave  in  evidence,  that  Pcachier  did,  on. 
the  4th  of  January  arid  the  Ijth  of  December  1798,  write 
letters  to  the  defendant,  and  send  the  same,  of  which  the 
following  are  true  translations:     That  of  the  4th  of  Janu- 
ary 1T98,  is  as  follows:  •'!  am  glad  to  see  by  your's    that 
you  hud  duly  recehed  my  lener  of  the  24th  of  July,  which 
informed  you  of  the  death  of  Mr.  Terrier  de  Laintre,    (of 
whom  1  was  the  executor.)  and  forwarded  you  a  copy  of 
the  articles  of  his  last   will    and  codicils,   which   concern 
vou,  and  his  son  Chcry,  whom  he  recommends  to  your  good 
tares.     An  inventory  has  been  made,  in  legal  forms,  of  all 
the  credits  and  debits:     But  the  latter  cannot  be  perfectly 
known,  because  the  deceased  had  many  friends  in  France, 
wi;h  whom  there  are  accounts  to  settle,  and  which  cannot 
be  done  by  reason   of  the  war.      It  results,   that  the   net 
amount  of  the  estate  cannot  be  ascertained,  of  course  the 
inventory  is  imperfect,   and  cannot  be  rectified  till  after 
the  war.     Messrs.  Terrier  de  Luistre.  have  taken  the  quali- 
ty of  conditional  heirs,  and  have  lately  applied  for  a  delay 
of  six  n.onlhs,  which  has  been  granted  to  them.     After  its 
expiration   they   will  probably  ask  for  more  time,  which 
will  also  Le  granted;  and  this   will  go  on  until  the  return 
of  peace.     Until  they  take  a  determination  on  the  subject, 
1  cannot  dispose  of  auy  thing.     All  the  furniture  and  ef- 
fects which  are  coming-  to  young  Ckcri/,  have   been  inven- 
toried and    shut  up  in  a  cupboard.     Whatever   may  hap- 
pen, the  estate  is   good,  but   the  heirs  wish  to  be  perfectly 
acquainted  with  it.     They  have  told  me  that  they  are  well 
disposed  to  fulfil  the   will    of  their  father,  if  they  are  not 
too  much   injured.     The.  Ir.w   grants  them   the  option   to 
have   the    community    of  their    nsother   continued   to   the 
death  of  tlieir  lather,  bucnuie  he  had  not  made  a  legal  in- 


£00  '"COURT  OF  A  I1; 

,  to  know  \\hi<  h  is  more  advantageoui 
r  tii  have  the  cnmmiinifv  continuctl,  ami  to 
recei\e  their  leiMtir.i,   or  to  lake  tlie  qualify  of  heirs.  This 
i  f  the  bii-ir.r»>.      I    am   iv>in<;   on    with, 
the  liquidations  in  collecting  ihe  debts,  :i!nl  pa\in:;  \\iia; 

The    letter  of  the    !.'•       ' 
i;i\  .Mitcrv,    on  act  .Jimt  of  llie  war,  had    nut 
completed:  a:id  it  .V  ',  that  *•(': 

%er,  (one  of  whom,  -litre  the  _;. 

brother,  v,  ho  i-  on  yoor  i«u- 

tinent,  and  \\\\  • 

1o  administer  their  projirrtit  - 

.  :  1  th<.-  iin-  t;i   Lninv  ho\v  !o;ii;  it  will  rc- 

ij'.ire  for  the  liquidation;  I  *av,  that  actnatcd  bv  ;i!i 

MS,  I  have   remirrrd   my  an  .   who 

from   that   time,    administer  their  proper; i 
I  have  already  informed  you,  tha. 
\ecution    of  tiie  \;iii.  so   far 
and  that  the  S':  on.      Mr.    /-' 

decree    of    the    court,    been   nomina  •  in    to   tlse 

young  Chfry,    and    defends    his    intcre.-.t    in    that    «Mialt- 
f. .       It  is   necessary   to  -o    on    wi:h   the    suit,    ni:d 
for  its   conclusion,    in   older  to  abide   by    the  j 
lie  also  «;avc  in    evidence  the   proceedings  in  the  o: : 
court  of  Jiuftimore  county,  upon   the  exhibition  and  proof 
of  that  part  of  the  codicils  and  v. i!!>  (.f  I'M 
the  8th  and  llth  clauses  in  the  \viil  or  codicil  of  tin-  1  Jth 
of 'April  1797*  is  herein  before  mentioned,   \virii  a  direc- 
tion   thereto   annexed   by   the  te*tato;-. 

ir;r:«U  some  of  his   ellects  were,  to  tie- 
liver  the  same  up  on  notice  of  his  death,  to  the  tlet-.-n-l:»nf. 
and   proof  thereto,  and  to  the  extract  of  hi.,  will  ami. 
of  the  harul-writing  of  tiie    t«  - 
•••Mary  \' 

.  slid  \\hidi  lelt.  y  the  de- 

vt-  in  i-xiilei.cf  to  th"  j'lrv.  lie  further 
i  eudeme,  ihat  the  te>taf(/r  was  a  niit'ne  of  the 
in  ol  /'icnrt,  and  fur  <. 

TII  of  t'-.e   !-:.; mi  of  Mi',  .  ,::ni  resident  of 

that  I>I,-.i.tl,  which  \-      .  v.  hole  time  that  he  there, 

d,  until  his  tKath,  ami  at  the  time  of  his  deaih.  sub- 

•d    by,  ihe  -a me    la«s  as  the  olln 
Ui.ds  of  the  ll'itt  Indie*  dependant  on  the  -o\ciuiucnt  of 


OF  MARYLAND.  20? 

ThaHhe  testator  came  to  the  U.  .?.  on  the  Gtlx  1807. 
of  November  IT'.*"!,  and  li-fl  (ho  £r.  .'*'.  to  return  to  the  Is- 
1  ind  (if  M(irHni({ur^  on  the  Oth  of  September  1700,  and 
that  having  arrived  at  that  Island,  he  departed  this  life,  at 
1h.it  place,  on  tlie  19th  of  July  1797.  That  the  sum  of 
12, SCO  livres,  money  of  the  Islands,  which  constitutes  the 
first  charge  in  the  plaintiff's  account,  is  the  estimated  va- 
lue of  four  slaves,  which  were  delivered  by  the  testator  to 
his  =on,  the  plaintiff,  as  a  part  of  his  marriage  poriion,  and 
which  were,  by  the  plaintiff,  again  returned  to  the  testator, 
some  time  about  the  year  1792.  That  the  plaintiff  was  not 
entitled, bv  \\\c  French  laws  regulating  this  education,  tochsim. 
cither  that  sum,  or  interest  thereon,  or  any  part  thereof, 
as  the  creditor  of  his  father,  or  of  his  father's  estate,  unless 
lie  absolutely  and  entirely  repudiated  and  delivered  up  the 
succession,  and  his  right  as  heir,  after  his  father's  death, 
and  renounced  all  right  in,  and  claim  to,  the  succession  of 
his  father;  and  that  the  plaintiff  had  not  so  done.  That 
the  sum  of  12,000  livres,  in  the  account  mentioned,  was 
lent  by  the  plaintiff  to  the  testator,  and  at  his  instance  re- 
ceived by  the.  testator  in  assignats,  at  their  nominal  value, 
and  not  in  specie,  and  that  assignats  at  that  time  were  only 
in  comparison  of  specie,  valuable  in  proportion  as  44  to 
100;  and  that  the  sum  of  28,000  livres,  in  the  account 
mentioned,  was  lent  by  the  plaintiff,  in  France,  to  the  tes- 
tator, and  by  him  received  in  France  in  assignats,  and  not 
in  specie,  at  the  nominal  value  of  assignats,  and  that  as- 
signats. at  the  time  of  this  loan,  were  only  of  value  com- 
pared with  specie  as  33  to  100,  and  that  the  sum  of  12,000 
livres  were  advanced  to  the  testator  on  account  of  the 
plaintiff,  the  21st  of  May  17P3,  or  thereabout,  by  Madame 
Jiitbln  Bhimpre;  and  the  sum  of  28,000  iivres  by  the  same 
lady  to  the  testator,  on  or  about  the  1st  of  August  1793; 
and  that  the  plaintiff  did  afterwards  repay  the  same  ad- 
vances to  her  in  assignats,  at  their  nominal  value,  and  not 
in  specie.  That  according  to  the  French  laws  operating 
upon  and  regulating  the  raid  loans,  the  plaintiff  is  not  en- 
titled to  receive  interest  of  any  kind  thereon,  or  on  either, 
except  from  the  time  of  bringing  this  suit.  And  as  to  the 
claim  in  the  account  of  3,4  it)  livres,  the  defendant  gave 
in  evidence,  that  one  Moisy,  being  indebted  to  the  plain- 
tiff in  the  sum  of  SI  TO,  drew  a  bill  in  favour  of  the  plain- 
tiff upon  his,  the  drawer's  correspondent,  in 


IX  TITS  COTTRT  OK   \!> 

• 

dollar,  a:  -.•»!  l»v 

is  delivered  to  th'>  tc-tafo:-    (i  'lilted 

lo  hi*  correspondent  in  :'  >vo  from  the  : 

draun  the  a-.nonnt    thereof 

s-i^nat-,  and  that  for  want  of  proo:'  ,\-  (he 

pi  aim  iff,  (hat   I. 
and  !•  .  and  that 

•  IVAS   ()f 

vernrivn1  airaiii-?  emigrant*.  ' 

tator  never  .      i  1  that  the 

.i-  i-occivcd  no  part  tli.-r,vif'f  Int  thai  t!u«  bill   }.-t    re- 
mains unpaid  in  the  hand-*  of  tin*  |);-i  <on  to    \vli!»:ii    i 

lie  fin  (her  gave   in   c\ili-in-i> 
l)\-   him    in  (lie  nrphatH  ctup-t  of   , 
\vhiMvi»v  it  apncais  that  \w  charges  himself  with  t! 
of  S'  current  n  I   of  (!)(> 

the   tc.-tafnr,    and    rrodr  like 

. 

which  he  is  allowd,  IcnvinT;  the  s-uu   «if  SI  l.s;)i  (>|    |ii;e 
:  the  hands  of  the-  ilefetldiftlt,   and    which    he    re- 

tain-,   hi'in^;  left    him   !>y    th-   ilcr-.-i-:--!'^  will.      'i",;it  the 
sum-;  •  ')  h"  r'la-  if  in  (he   account,    pro- 

1    from   the   sales  of  <i:  '-.    wari-- 

.  which  wore  in  the  V.  S.  \\-\\. 
and  from  certain  dehfs  wliich  remained  duo  in  the   I'. 

•  .and  ho  :  in  le 

1  i'con- 

mlae  which  the  testator  had  a  -  in  (he 

•tod  <lu%rofro:n  to  return 

and  which  (he  d  !  hy  him  to  r:> 

v.-oro  afterward-  paid  '•<  or  ^-::!i-d  wi'h    tin- 
Bclf,  after  he  went  to    .1.'  .   and    tin-;.  !    not 

the  hands  of  Ih-   dcfi»rnla:i'.  :it    to   in- 

•l.-lV.nd.in;   offerid    in  cvi  lencc,   a 

•  the  tici  .        u-ino; 
.  on  (ho  2()!h  of  March  1  .•  dc- 

fenda'nt  also  off  d'erort  n'mi  tanceg 

and  ftitxU  M>inirte<l  to  (!•  .\!i'ie    in   <hc*  f.   & 

eluding  th--  ;»y  Jhith^  •   the 

;ile   in    ; 
-  expend iturua  nhile  lliere,  and    the  sum  he  carried 


OF  MARYLAND.  200 

from  hence  when  he  left  the  U.  S.  and  to  show  and  prove        1807. 

the  same,   offered  in  evidence  certain  extracts  from  the       *— - v-— ' 

memorandum  book  produced  by  the  plaintiff,  in  the  hand-          »«. 

writing  of  the  testator,  vi/.: 

"My  general  account  in  the  continent  Dr. 

1795. 

June  25.     Balance  of  4  Bills  of  Exchange  for 

my  adventure,  g3,198 

1796. 
June  18.     To  Duvall  MonvWe^  received  for  his 

account  by  a  bill  of  Mrs.  Au- 

guart,  his  sister,  792 

July  23.     To  Viaiti    net  amount  remitted  by 

him  as  appears,  Sic.  4,586 


1795.  Cr. 

Dec.  31.     By  13  months  expenses,  as  appears 

by  the  particulars.  gl,225 

1796. 
Sep.  30.     By  9  months     do.  do.  936 


For  22  mbnfhs  expenses,  j&2, 161 

By  remittance  to  Si. 

Claire,  800 

By     do.     to  Ollie,  2,400 

By    do.    to  Eyma,  800 

By    do.    to  Dancemont,    124  T*J^. 

4,124  ?\ 

For  advances  to  divers, 

To  Deville,  junr.  370 

To  Mrs.  Luppi,  533 

903 

Furnished  to  divers, 

To  Chery,  593 

To  De  Laistre,  722 

.  1,315 

For  my  passage  50,  for  my 

expences  3  ^i  53  T3-^. 

Carried  with  me  in  specie    20 

73  38 


TOL.   II.'  27 


$10  C  V>ES  IN  THE  COURT  OP  APPEALS 

1807.  Concluded  at  Baltimore^  this  5th  Septem.  17%,    until 

the  t-nd  oTSeptanber.'' 

*'1C  defendant  also  offered  evidence  to  prove,  that  there 
vas  a  ilejl  due  from  the  plaintiff  to  the  testator,  at  tlie 
time  of  his  death,  amounting  to  the  sum  of  1  1  1,.>J>7 
13  sols  and  4  lii-niers,  money  of  the  Island  oi 
which  sum  of  money,  at  the  time  aome  mentioned,  wa»  of 
the  value  of  813,519  G3  current  money  of  Mitnjluiitlt 
which  ought  to  be  deducted  from  and  set  olV  ai;ain»i  any 
thing  which  might  be  due  from  the  testator's  estate  to  the 
plaintiff*,  even  if  he  had  any  claim  which  as  a  creditor  he- 
could  sustain  or  support.  He  further  gave  evidence,  that 
Pechier  did,  on  or  about  the  7th  of  July  1798,  deliver  over 
to  the  plaintiff,  and  his  brother,  Marc  Anthony  Terrier  de. 
Zais/rc,  as  heirs  of  the  testator,  the  succession  of  the  tes- 
tator, and  the  papers  relative  thereto;  and  that  the  plain- 
tilV,  and  his  brother,  have  since  had  the  same  under 
their  management,  and  in  their  po»o.->-i<m;  and  that 
the  plaintiff  hath  intermeddled  with  the  estate,  and 
acted  in  respect  thereof  as  heir;  and  also  that  the  succes- 
sion or  estate  of  the  testator  is  not  insolvent.  He  also  of- 
fered evidence  to  prove,  that  the  acknowledgment  enter- 
ed in  the  books  and  papers  of  the  testator,  produced  by 
him,  of  the  sums  for  which  his  succession  ought  to  account 
to  the  plaintiff,  or  in  the  French  language  ^donl  ma  suc- 
cession doit  lui  tcnir  (oufaire)  complc,"  only  admits  that 
such  sums  are  to  be  settled  with  the  plaintiff  out  of  the 
estate  real,  personal  and  mixed,  which  he  should  leave  at 
the  time  of  his  death,  according  as  the  laws  of  France*  re- 
gulating the  Island  of  Murliniquc,  and  there  used  and  in 
force,  authorises  and  directs.  He  also  gave  in  evidence, 
that  the  devise  to  him  is  not  expressed  to  be  under  any  se- 
cret trust.  That  to  prove  a  devise  to  be  a  secret  trust, 
by  the  I-rcnch  laws,  the  testimony  of  witnesses  cannot  be 
admitted;  but  that  the  supposed  secret  tiustec  is  to  an- 
swer, upon  oath,  whether  h«  has  lent  hi*  name  or  not,  di- 
rectly or  indirectly.  That  according  to  the  Ffcnch  lawg, 
regulating  this  case,  the  plaintiff  has  no  interest  or  rights 
against  the  defendant,  cither  as  a  debtor  or  legatee  of  the 
testator,  or  as  debtor  of  the  testa) or's  estate,  which  he  as 
a  creditor,  or  in  any  manner,  can  enforce,  unless  the  plain- 
tiff had  first  solemnly  repudiated  and  given  up  his  right  ol" 
inheritance  to  the  succession,  and  had  renounced  all 


OP  MARYLAND. 

as  heir  to  the  succession;  and  that  the  term  "succession,"  1807. 
in  (lie  French  laws,  means  the  whole  estate  real,  personal 
and  mixed,  of  every  nature  and  description,  whereof  a 
testator  dies  seized  or  possessed.  That  the  Island  of 
Martinique,,  and  the  citizens  thereof,  are  subject  to,  and 
regulated  by  the  laws  mentioned  in  the  execution  of  tha 
respective  commissions  which  issued  in  this  cause;  and 
that  the  law  is  as  stated  in  the  respective  commissions,  by 
the  witnesses  examined  on  the  execution  of  those  commis- 
sions upon  the  legal  interrogatories  put  to  them  on  the  exe- 
cution of  the  commissions  respectively;  which  interroga- 
tories and  answers  thereto  he  offered  in  evidence.  He 
also  offered  evidence,  that  the  plaintiff,  soon  after  the  deaths 
of  the  testator,  went  to  the  Island  of  Martinique^  and  waa 
residing  there  about  a  year.  That  no  insolvency  of  the  sue* 
cession  of  the  testator  can  be  proved  or  established^  so  as 
to  admit  suits  to  be  supported  upon  the  grounds  of  an  in- 
solvency, unless  the  estate  has  been  liquidated  and  settled. 
by  regular  judicial  proceedings  in  a  court  of  justice,  where, 
the  accounts  are  settled,  and  the  insolvency  shown,  and 
that  any  person,  who  is  to  be  affected  by  the  insolvency, 
may,  upon  suit  being  brought  against  him,  to  be  supported^ 
in  consequence  of  that  insolvency,  contest  the  same  upon 
the  trial,  unless  he  was  a  party  to  thejudicial  proceedings 
establishing  the  insolvency,  and  had  there  an  opportunity 
of  being  heard,  and  of  contesting  those  proceedings.  That 
the  testator  was  indebted  to  divers  persons  ia  -Fra/ice,  for 
debts  contracted,  in  assignats,  and  otherwise,  which  wera 
in  his  power  to  repay  in  assignats,  which  had  become  great-* 
ty  depreciated  j  that  in  order  to  pay  off  his  debts  aforesaid  j 
with  the  least  sum  possible,  and  thereby  render  his  suc- 
cession the  more  valuable  to  the  plaintiff,  and  his  other 
son,  his  heirs,  he  solicited  the  said  remittances  to  be  made 
to  him,  while  in  the  U.  8.  and  endeavoured  to  have  pro- 
perty transferred  to  him,  to  employ  the*  same,  as  far  as 
there  should  be  a  surplus  after  his  own  support,  to  make 
remittances  to  France  to  pay  an'l  discharge  those  debts; 
and  that  the  said  remittances  were  not  endeavoured  to  be 
procured,  or  his  property  sought  to  be  transferred,  to  the 
U.  S.  to  dispose  of  it  contrary  to  the  laws  of  France.  He 
also  gave  in  evidence  what  were  the  remittances  the  testa- 
tor received  in  property,  or  otherways,  while  in  the  U.  f>\ 
and  that  they  were,  expended  in  the  support  of 


CASKS  IN  THE  COURT  OF  AFIT.AI  - 

180r.         family  while  in  the  I'.   A',  and  in  remittances  for  jm \irent 
(I  liis  debts.      That  as«i«;i;at«  was  a  "f  paper    mo- 

nev,  or  paper  airrrnc\.  i--urd  undei  the  authority    of  tlie 
French  ^o\  Tinmcnt.  since  flu- cominenreir.ent  of  the  1 
revolution,  at  different    times,    and  \\hirh,    \\hen    i- 
•were,  or  since  being  Usued    became,    of  much  less    value 
than  gold  or  silver  current  coin,  and  t  the  value 

of  dollars  with  livres  in  specie,  the  dollar  in  ,-prrir  is  ecjual 
to  five  UMTS  ti'imicis  and  live  sols;  whereas  the  dollar  in 
specie  has  been,  and  is  worth  much  more  than  the  >;:me 
number  of  livres  tnurnois  in  assignats,  according  to  the 
different  state  of  depreciation  of  assignats.  The  plaintiff 
ihen,  to  prove  (hat  the  French  laws  cannot  aj-j  Iv  • 
operate  upon  this  case,  gave  in  evidence,  that  the  defen- 
dant took  out  letters  testamentary  in  this  state  upon  the 
estate  of  the  testator  situated  therein,  and  that  the  money 
received  into  his  possession,  as  above  set  forth,  and  be- 
longing to  the  estate  of  the  deceased,  was  money  I 
by  the  deceased,  in  his  life-time,  in  the  C.  X.  am!  ihai  the 
money,  or  goods  and  merchandise,  from  the  sale  of  which 
it  arose,  was  withdrawn  from  the  French  dominions  by  llic 
testator  in  his  life- time,  and  lodged  in  the  f*.  A.  for  the 
express  purpose  of  evading  the  laws  of  France  and  Marti' 
jiiqiTi  and  of  disposing  of  them  by  his  will  to  the  preju- 
dice of  Hie  plaintiff',  and  in  such  a  manner  as  those' laws 
expressly  forbid.  And  the  plaintiff  also  gave  in  evidence 
the  will  of  the  testator,  proved  by  the  defendant  in  tl.e 
orphans  court  of  BaUtmon  county,  on  which  letters  tes- 
tainenturv  were  granted  to  him  by  that  court.  'I  he  (•bin- 
tiff',  to  prove  that  the  debt  for  which  this  action  is  brought 
i-.  an  i£meriam  debt,  and  not  subject  in  any  manner  to  the 
operation  of  the  Fnnch  law-p,  gave  in  evidence,  that  the 
two  i-mi's  nf  1-2,000  UMTS  and  28.000  livres,  ann-mitim:  to 
40,000  livres,  received  from  the  plaintiff'  by  the  testator, 
through  Madame  JJithin,  in  BourdeaUXt  were  obtained  from 
the  plaintiff  by  the  testator,  under  an  expectation  hold  >nt 
by  the  testator  of  his  employing  them  beneficially  in  the 
purchase  and  exportation  of  merchandise  for  the  bun-fit  of 
tlv  i  liiintiff,  and  that  the  sum  of  ;\;r-.  pit  of 

the   4<>.<;»;0  livres,    were   actually  invested    in    the   pur- 
chase of  merchandise,  by  the  testator   in  Franrr.    on  the 
29th  of  December  1793,  and  that  the  merchandi- 
tbat  day  uuually    shipped   by   the    testator    to  fhiludel- 


OF  MARYLAND.  Si 3 

pJiifij  and  did  arrive  at  Ainloy,  in  the  state  of  New  1807. 
Jrr,v,/y,  on  or  before  the  22d  of  May  1795,  and  were 
there  received  by  the  testator  into  his  possession,  and  sold 
and  disposed  of  for  his  own  use  and  benefit,  about  that 
time.  He  also  offered  in  evidence,  that  (lie  sum  of  40,000 
livrt-s,  lent  by  him  to  the  testator,  were  by  him  received 
with  a  view  to  the  removal  of  the  testator,  and  of  the  plain- 
tiff, to  the  U.  A',  and  to  the  repayment  of  the  loan  in  the 
U.  S.  And  for  that  purpose  he  gave  in  evidence  a  part 
$f  the  will  of  the  testator,  made  at  Philadelphia  on  the  1st 
of  April  1795.  He  also  gave  in  evidence  the  aforemen- 
tioned memorandum,  bearing  date  on  the  30th  of  Septem- 
ber 1795;  and  proved  that  it  was  made  in.  Philadelphia, 
in  the  U.  S.  and  that  at  the  time  of  making  the  memo- 
randum, and  also  the  will  ot  the  1st  April  1795,  the  plain- 
tiff resided  within  the  U.  S.  and  was  then  known  by  the 
testator  so  to  reside.  And  also  to  prove  that  the  debt  due 
to  the  plaintiff  by  the  testator,  as  acknowledged  in  the 
will  of  the  1st  of  April  1795,  and  by  the  memorandum  of 
the  30th  of  September  1795,  was  on  the  14th  of  April 
3797,  a  debt  due  in  the  U.  S.  within  the  legal  meaning 
and  operation  of  the  eleventh  clause  of  the  will  of  the  14th 
of  April  1797,  and  therefore  chargeable  on  the  legacy  left 
to  the  defendant  by  the  eleventh  clause,  the  plaintiff  gave 
in  evidence,  that  from  the  1st  of  April  1795,  until  the  14th 
of  April  1797,  and  on  those  days  respectively,  the  plain- 
tiff constantly  resided  \vithin,  the  U.  S.  and  was  on  those 
days,  and  during  the  whole  of  the  period  between  them, 
known  by  the  testator  to  reside  in  the  United  States;  and 
that  the  words  "in  the  said  continent,"'  or  tidan.<i  fe  dil  con- 
linenl*"  in  the  eleventh  clause  of  the  will  of  the  14th  of 
April  1797,  m.ean  and  were  intended  by  the  testator  to 
express,  "within  the  United  States^  The  plaiutiff,  to 
prove  that  by  the  French  laws,  if  applicable  to  this  case, 
he  cannot  be  prevented  from  recovering  in  tin's  action, 
gave  in  evidence,  that  by  the  laws,  '*as  no  man  can  be- 
stow on  another  that  which  does  not  belong  to  himself, 
therefore  every  species  of  debt  due  by  a  testator,  even 
those  least  favoured,  is  preferred  to  every  species  of  be- 
quest by  will:"  and  that  by  those  laws  an  heir,  with  bene- 
fit of  inventory,  who  is  also  a  creditor  of  the  deceased,  to 
whom  he  is  an  heir,  may  recover  his  debt,  and  also  receive 
his  portion  of  tlie  estate;  and  that  the  children  of  a  dcccas- 


*          CASES  IN  'I  HE  COURT  OF  APPEALS 

1807.  C(l  person,  or  any  of  them,  may  by  (he  said  laws  require 
that  an  inventory  of  the  estate  be  made  and  completed, 
and  that  they  be  allowed  a  reasonable  time,  to  be  settled 
by  the  courts  of  competent  jurisdL  timi  after  such  comple- 
tion, to  make  up  their  determination  before  they  fleet  to 
renounce  the  inheritance  altogether,  or  to  take  it  a>  heirs 
vith  benefit  of  inventory,  within  which  time  they  may 
elect  to  take  the  inheritance  as  heirs,  with  benefit  of  in- 
ventory, whereby  they  do  not  lo->e  their  li^ht-as  tmlin  i-. 
Ami  to  prove  that  the  plaintiff  is  heir  of  the  testator,  with 
benefit  of  inventory,  and  hath  done  no  act  whereby  he 
could  be  rendered  heir  pure  and  simple,  accoiding  to  the 
naid  laws,  the  plaintiff  y;a\e  in  evidence,  that  he  hath  not 
in  any  manner  intermeddled  with  the  estate  of  the  testa- 
tor in  the  Island  of  Marl'iii'mitc,  nor  received  any  thin:; 
therefrom  as  heir,  and  that  the  administration  of  the  • 

always  remained  in  the  hands  of,  and  been  conduct- 
ed bv,  Dominick  Pechier  of  that  islari'i,  the  exeiuior  ap- 
pointed by  the  will  of  the  I4tb  of  April  17'.>7,  who  hath 
made  an  inventory  of  the  estate  conformably  to  the  laws 
of  that  island;  and  that  the  estate  in  the  island  is  wholly 
insolvent,  and  unable  to  pay  the  debts  chargeable  themm. 
That  by  the  French  laws,  interest  is  chargeable  on  all 
mercantile  debts  and  transactions,  and  on  money  lent  for 
the  purposes  of  commerce,  from  the  time  of  such  loans 
i  lively.  The  plaintiff',  to  prove  that  the  defendant 
cannot  be  considered  as  a  legatee  under  the  l-'fciich  luu-, 
and  the  laws  of  the  said  island,  admitting  those  law-  !•• 
apply  to  this  case,  and  to  operate  upon  it,  and  therefore 
cannot  avail  himself  of  the  character  ul  lei/mee  by  wa\  of 
defence  in  this  action,  gave  in  evidence,  that  by  the  said 
]aws  any  legacy  given  to  an  illegitimate  child,  either  di- 
rectly or  by  a  declared  trust,  to  tlr.:  prejudice  of  the  legi- 
timate children  of  the  testator,  is  void,  e\re>,t  a>  to 
part  of  such  legacy  as  the  courts  of  the  place  shall  deter- 
mine to  be  a  re. i-  'liable  subsistence  for  such  illegitimate 
child,  in  proportion  to  the  extent  of  the.  estate,  and  other 
circum-taiue-;  and  that  by  the  said  la\\s  all  le^:;r:e-  ^ixeli 
upon  iru»t,  lor  whatever  pttrj;usp\  are  absolutely 

void.     And  the  plaintiff  al-<>  irnvt>  in  evidence,  that  the  le- 
M  to  ihe  defendant,  in  and  by  the  will  of  the  1  Irh 
of    April   1797.  \\a-  -i\en  on  a  secret    lnM  fur  the  b-'iielit 
of  a  certain  Ckeri  Tcrrici;  art  illegitimate  son  «f  the  t«- 


OF  MARYLAND.  g 

tator,  and  to  the  prejudice  of  the  plaintiff,  his  legitimate  r!807. 
son.  The  plaintiff,  to  prove  that  the  will  of  the  J4th  of 
April  1797,  and  the  legacy  claimed  by  the  defendant  un- 
der that  will,  have  been  and  are  annulled,  and  wholly  set 
aside  by  a  court  of  competent  jurisdiction  in  the  Island  of 
Martinique  ode  red  to  read  in  evidence  an  exemplification 
of  a  judgment  or  sentence  rendered  by  the  supreme  court 
of  that  island,  which  exemplification  purports  to  be  attest- 
ed under  the  hand  and  official  seal  of  the  grand  judge  of 
the  island,  and  is  as  follows:  "7th  of  May  1801.  George 
the  third,  by  the  Grace  of  God,  King  of  England,  &c.  &c. 
To  all  present  and  to  come,  greeting.  Between  Messrs. 
Terrier  de  Laislre,  brothers,  beneficiary  heirs  of  their  fa- 
ther, appealing  from  the  sentence  rendered  in  the  Sene- 
chausse  of  St.  Pierre  on  the  20th  March  last,  on  the  one 
part,  and  Mr.  Dtiqutsnay,  as  well  in  his  own  name,  being 
a  donatee  of  his  late  wife,  who  was  a  private  legatee  of  the 
late  Mr.  Terrier  de  Laistre,  as  acting  tutor  for  the  minor 
Chcry,  private  legatee  of  the  said  Teriier  de  Laislre,  de- 
fendant, on  the  other  part,  and  also  Mrs.  Pigache,  resid- 
ing in  Sf.  Pierre,  and  Mr.  De  Sobry  residing  in  the  United 
Stales  of  America,  defendants  likewise,  on  the  other  part. 
And  between  Mr.  Duquesnay  in  his  quality  of  a  donatee 
of  his  said  wife,  who  was  a  private  legatee  of  the  late  Ter- 
rier de  Laislre,  appealing  from  the  same  decree,  as  to  the 
main  part  thereof  which  condemns  him  to  the  costs,  OQ 
the  one  part,  and  the  said  Terrier  de  Laistre,  brothers, 
defendants,  on  the  other  part,  and  also  Mrs.  Pigache 
and  Mr.  De  Sobry,  likewise  defendants,  on  the  other 
part.  And  also  Mr.  Dvquemay,  in  his  quality  of  tutor 
ibr  the  minor  Chery,  also  appealing  from  the  saitl 
decree,  on  the  one  part,  and  Messrs.  Terrier  de  Laislre, 
brothers,  in  their  said  quality,  defendants,  on  the 
other  part,  and  also  Mrs.  Pigache  and  Mr.  De  Sobryr 
likewise  defendants,  on  the  other  part.  And  also  between. 
Mrs.  Pigache,  appealing  also  from  the  same  sentence,  as 
to  that  part  which  has  condemned  her  to  the  costs  only, 
on  the  one  part,  and  the  said  Terrier  de  Laialrc,  brother*, 
defendants,  on  the  other  part,  and  also  the  said  Mr.  Du~ 
quesnay,  as  well  in  his  own  name  as  in  his  quality  of  tutor 
for  the  minor  Chery,  and  M.  De  Sobry,  defendant  likewise, 
on  the  other  part.  Seen,  &c.  &c.  The  court  having 
heard  the  kind's  attorney  general,  acting  in  his  conclusi- 


i  ISES  IN'  THE  COURT  OF  AIMM'.ALS 

ISO!".         on>,  ami  Mr.  Durairrroi/,  counsellor,  in  his  report  pronounc- 

*—  •>—  -'        in-Minon  the  appeal  of  the  sa'ul  Mrs.  Pl^arhf,  and  of  Mr. 

. 
j.    ".  Diu/m  -'  '<'//.  a-,  well  in  his  o\vn  and  prirate  name,  as  in  his 

quality  of  tutor  for  the  minor  Cht-nj,  have  annulled  the 
s.iid  appeal  with  fine  and  «  -'-.  \nd  pronouncing  like- 
•  •n  the  appeal  eirered  liv  M-".-r».  '/'<.  •/•//,•  '/r  I.nhtre^ 
brother-.,  have  annulled  both  ir>e  appeal  and  the  object 
thereof  —  enacting  and  stating,  as  well  upon  (he  tone  IUM- 
ons  :ak"ii  l)v  them  in  the  main  action,  ;ir  upon  those  of  the 
appeal  —  Declare  the  testament  and  codicil  of  the  late  'l\r- 
rier  de  Laitfre,  of  the  1st  of  April  17:'.i,  14th  April  and 
10?h  Jtilv  iriT,  to  be  null  and  of  no  effect)  inconsequence 
reject  the  demand  in  delivery  of  the  legacies  made  to  them 
by  the  said  tes'ar.ient  and  codicil,  and  the  costs,  notwith- 
standing, to  be  paid  out  of  the  mass  of  the  estate.  Or- 
dain, &c.  Done  In  the  Sovereign  Council  of  MarHniqtoti 
on  the  7th  of  May  1801.  Delivered  the  present  exempli- 
fication to  citizen  /)r,,,ii,)iffne  Pe,chter^  merchant  in  Sf. 
e,  an  execu'or  of  cit'r/.en  Terrier  <lc  Lalafrr,  at  his 
request,  on  (his  13th  day  of  Germinal,  12th  year  of  the 
French  Republic,  or  on  the  3d  April  1804,  (old  style.) 

"Le  Camus. 
"Sealed  on  the  same  day. 


"We,  Grand  Judge  of  Marliniqne^  certify   all  whom  it 
may  concern,  that  the  above  signature  is  (hat  of  C.  / 
i/w.-j,  Chief  Secre(ary  of  the  Court  of  Murtinijur,  and  that 
faith  ought  to  be  given  to  it  as  well    in  as  out  of  judgment. 
"We  certify  farther,  that  stamps  are  not  used  in  this  colony. 
Given  at  Fort  de  France,  the  13th  Germinal,  12th 
(Seal.)      year  of  the  Republic.     Sealed  witli  our  seal,  and 
countersigned  with  our  signature. 

"Lr.  Fcssier,  Grand  Pres. 
wBy  the  Grand  Judge, 

"The  Secretary, 

Fouchri/,  Son. 

"Lniii*  rfrcamlial,  consul  of  France,  for  the  state  of 
Maryland,  one  of  the  l.'nitfl  Stnii.t  of  .'/inrriar,  residing 
at  ftallimore,  certify,  that  Mr.  Le  Fcssicr  de  Grand  Prf, 
who  has  signed  the  above  legalization,  is  Grand  Jml-e  of 
the  Islari'l  of  Mrtrtinitjnr;  that  the  signature  is  truly  lii>, 
and  t»mt  faith  oujjht  to  be  given  to  it,  as  uell  in  as  out  of 
judgment.  Certify  also,  that  the  Grand  Judge  is  the  only 


OF  MARYLAND. 

authority  existing  in  the  French  colonies  for  the  legaliza-        1807. 

tion  of  judicial  acts. 

In  faith  of  which  we  have  signed  these  presents,  and  have 

thereunto   affixed   the    seal   of  the  consulate  at 
(Seal.)      Baltimore,  the  6th  Brumaire,  year  13th,  (28th 

October  1804.) 

Lt  Jlrcambal." 

The  plaintiff',  to  prove  that  the  attestation  was  in  fact  under 
the  hand  and  seal  of  the  said  grand  judge,  produced    and 
read  in  evidence  a  deposition  sworn  in  open  court,  and  ad- 
mitted in  evidence  by  consent  of  parties,    so  far  as    parol 
evidence  is  competent  to  prove  the  matters  for  which    the 
deposition  was  so   offered    in   evidence,    which    deposi- 
tion is  annexed  to  the   exemplification,  and  is  in  the   fol- 
lowing words:  "Personally  appeared  in  open  court,    Jin* 
toine  Baudouin,  of  lawful  age,  who  being  duly  sworn,   ou 
his   oath    did   say,  that  he   is  well   acquainted   with    Le 
(\tmus,  of  Saint  Pierre,  in  the  Island  of  Martinique,  whose 
signature  is  affixed  to  the  paper  hereto  subjoined;  and  also 
with  Le  Pettier,  dc  grand  pres,    of  the  said  island,  whose 
signature  is  also  affixed  to  the  said  paper,  and  is  well   ac- 
quainted with  the  hand-writing   and  signature  of  the  said 
Le  Camus  and  Le  Fessier,  grand  pres,   having  seen   them 
respectively  write;  and  that  the  name  Le  Camus  is  the  pro- 
per hand-writing  and  signature  of  the  said  Le  Camus,  and 
that  the  name  Le  Fessier,  grand  pres,  is  the  proper  hand- 
writing and  signature  of  the  said  Le  Pessif.r,  grand  pres. 
And  further,  that  he  is  acquainted  with  the  seal   of  office 
of  the  Grand  Judge  of  the  Island   and  Colony  of  Jkarli- 
nique,  and  that  the  seal  affixed  to  the  said  paper,  and  pur- 
porting to  be  affixed  by  the  Grand  Judge,    is  the   official 
seal;  and  that  the  said  Le  Fessier,  grand  pres,  is  now,  and 
was,    on  the    IStii  of  Germinal,  in  the    12th   year  of  the 
French   Republic,  Grand  Judge  of  the  Island  and  Colony 
tf  Martinique  :and  that  he  the  deponent  being  a  French  ci- 
tizen, and  a  resident  of  the  said  Island  of  Martinique,  he 
is  well  acquainted  with  the  laws  and  constitution  thereof, 
as  far  as  relates  to  the  powers  and  functions  of  the  Grand 
Judge,    Military  Commander   and    Prefect;  and  that  the 
Grand  Judge  is,  by  the  said  constitution  and  government, 
the  supreme  authority  and  chief  of  the  government,  as  to 
all  that  relates  to  judicial  papers  and  proceedings,    and  is 
the  sole  authority  by  the  said  laws  and  government  where- 
by any  judicial  proceedings  can  be  authenticated.     And 
VOL.  n.  28 


•>18  CASES  IN  THE  C  OURT  OF  A  V  P  K  \LS 

1807.  that  he,  this  deponent,  is  not  a  la\wcr  l>v  pn>IV--ion,  hut 
a  merchant,  and  derives  his  knowledge  of  the  said  consti- 
tution and  government  from  the  common  practice  of  (he 
place,  the  general  understanditij;.  ami  his  general  informa- 
tion as  a  French  citi/.en,  and  an  inhabitant  of  the  said  co- 
lony. The  deponent  further  says,  that  there  is  not  any 
general  seal  for  the  >aid  colony;  the  Captain  General  hav- 
ing one  for  all  aflairs  relating  to  the  military  department; 
the  Prefect  one  for  all  matters  relating  to  the  finances  and 
supplies  which  belong  to  his  department:  and  the  Grand 
Judge  one  for  all  matters  relating  to  the  judicial  depart- 
ment; and  that  he  derives  this  knowledge  from  his  own 
experience  and  transactions,  and  from  his  general  know- 
ledge of  the  said  colony  and  government."  The  defen- 
dant objected  to  the  reading  of  the  exemplification  as  evi- 
dence, because  the  same  was  not  legally  authenticated,  and 
because  it  does  not  contain  the  whole  proceedings,  and  is 
not  a  full  record  of  the  whole  proceedings  which  was  before, 
and  which  had  taken  place  in,  the  Supreme  Court  of  the 
Island  of 


Harper  and  ftoyd,  for  the  Plaintiff,  contended,  1.  That 
in  proving  a  foreign  judgment,  proof  of  the  seal  of  the 
court,  and  hand-writing  of  the  judge,  was  sufficient.  They 
cited  Hen  ry  vs.  -flrfn/,  3  East,  221.  Aloises  vs.  Thorn- 
ton, 8  T.  /,'.  303.  Church  vs.  Hubbarl,  2  Crunch,  238. 
Peahens  Evid.  72,  73,  (notes,)  49;  and  the  act  of  1785, 
ch.  46,  s.  2.  2.  That  the  record  is  full  and  complete  ac- 
cording to  the  principles  of  the  law  of  England  —  They 
cited  Peaked  Evid.  68.  5  Hue.  Jib.  tit.  Pleading,  323: 
and  1  Esp.  A.  P.  6. 

Martin,  (Attorney  General,)  and  Purvirmce,  for  the  De- 
fendant, cited  Pcuhc'a  Evid.  46,  47.  3  Inst.  173.  fiilb. 
L.  /•:.  1  7,  23.  Mrlan  vs.  The  Duke  of  /7/r/r/mw,  1  Dos. 
$  Pull.  14  Ij  and  Talleyrand  vs.  Uoulanger,  3  I'es.  448. 

CHASE,  Ch.  J.  The  Court  are  satisfied  upon  the  sub- 
ject, and  are  of  opinion  that  the  mere  showing  the  seal  ot 
a  court  of  our  own  state  in  another  court  of  the  state,  i« 
sufficient  authentication  of  the  judgment  of  the  couit  it 
purports  to  certify.  But  if  it  is  a  judgment  of  a  t 
court,  the  seal  of  the  court  does  not  prove  itself,  but  mii-t 
be  proved  by  testimony.  The  court  are  of  opinion,  tfcat 


OF  MARYLAND.  210 

the  testimony  produced  in  this  case  is  sufficient  to  prove  1807. 
the  seal  of  office  of  the  Grand  Judge  of  the  Island  and 
Colony  of  Martinique.  As  to  the  record's  not  being  full 
enough,  the  court  are  to  presume  that  the  record  produced 
contains  all  the  proceedings  in  the  court  of  appeals,  and  that 
it  is  a  full  record;  and  the  court  are  of  opinion  that  it  is  pro- 
per to  be  given  in  evidence  to  the  jury.  Besides,  it  is  to 
be  observed,  that  this  record  is  not  the.  matter  in  issue  in, 
this  cause,  but  comes  in  collaterally.  It  seems  to  the 
court,  that  as  this  is  mere  matter  of  inducement  the  same 
strictness  is  not  necessary;  but  upon  this  point  the  court 
do  not  mean  to  give  an  opinion.  In  the  case  of  Henry  vs. 
Adty,  3  £ast,  221,  it  was  debt  upon  the  very  record  pro- 
duced. The  court,  however,  are  of  opinion,  that  this  re- 
cord is  sufficiently  authenticated,  and  ought  to  be  read  in 
evidence  to  the  jury.  The  defendant  excepted. 

4.  The  counsel  differed  in  their  ideas  of  the  manner  iu 
which  they  ought  to  proceed  as  to  the  proof  of  the  French 
Jaw. 

Martin  (Attorney  General,)  for  the  Defendant,  contend- 
ed, that  when  it  is  disputed  as  to  what  are  the  laws  of  a 
foreign  country,  evidence  must  be  given  to  prove  what  are 
those  laws;  and  if  there  is  a  different  construction  put  upon 
them  by  the  parties,  the  court  is  to  decide  which  construc- 
tion is  to  prevail. 

CHASE,  Ch.  J.  seemed  to  concur  in  this  idea  of  the  at- 
torney general,  and  said  that  the  court  are  to  decide  what 
is  proper  evidence  of  the  laws  of  a  foreign  country;  and 
•when  evidence  is  given  of  those  laws,  the  court  are  to 
judge  of  the  applicability  of  such  laws,  when  proved,  to 
the  case  before  the  court. 

5.  The  defendant  offered  to  read  to  the  jury  certain  let- 
ters written  to  him  by  Dominique  Pechier,  (and  admitted 
to  be  in  his  hand-writing,)  for  the  purpose  of  controverting 
the  testimony  of  the  said  Pechier,  as  returned  with  one  of 
the  commissions  which  issued  iu  this  cause;  but  the  plain- 
tiff objected  to  the  reading  of  those  letters,  because  the 
testimony  taken  was  under  a  commission  obtained  by  the 
defendant,  and  he  cannot  invalidate  his  own  testimony. 


IN  TflK  COT-RT  OK  APl'K.U.S 

18i  CIIASK,  Cli.  J.   The  letters  beins  admitted  to  be  in  the 

hand  wtiti- .«  of  Mr.  Prcftnr,  the  witness,  the  court  arc 
of  o|)inion  they  may  be  trail  to  (lie  jury,  for  nne  JIT 
alone;  tli.it  is,  to  impeach  tlie  rreilit  of  the  wilm-vs  a-  ID 
what  he  has  sworn  upon  his  examination  under  the  com- 
iui>-ion.  contradictory  to  the  contents  of  the  letters:  but 
that  the  letters  are  not  admitted  as  e\idrme  to  pro>e  any 
particular  fact,  which  may  be  contained  therein. 

6.  The  plaintiff"  then  prayed  the  opinion  of  the  court, 
and  their  direction  to  the  jury,  that  a  contract  made  in  one 
country,  with  a  Vhpv  to  the  execution  or  performance  of 
it  in  another,  is  governed  in  all  things,  both  as  to  il 
sence  and  the  mode  of  enforcing  it,  by  the  laws  of  the  lat- 
ter cotrntry. 

CHASE,  Ch.  J.  If  the  contract  is  in  writing  it  will  itself 
show  where  it  is  to  be  executed}  but  if  it  does  not  z\ 
by  the  face  of  it,  the  presumption  is  that  it   is  to  be 
cuted    in  the  country  where  it  was  made.     If  it  do- 
pear  that  it  has  a  view  to  be  executed  in  a  particular  coun- 
try, it  must  be  carried  into  effect  pursuant  to  the  l;t\\»  it 
tint  country.     But  if  the  contract  is  by  parol,  the  party 
is  at  liberty  to  go  into  evidence  to  prove  the  intention  of 
the  parties  as  to  where  it  was  to  be  executed. 

7.  77re  second  bill  of  exceptions.  The  plaintiff  prayed 
the  opinion  of  the  court,  and  their  direction  to  the  j'»ry, 
that  if  they  are  of  opinion,  from  the  evidence  before  them, 
that  the  testator  of  the  defendant  \va>,  on  the  1st  of  April 
and  the  50th  of  September  1707,  indebted  to  the  plaintiff 
in  the  several  sums  stated  in  his  account  filed  in  this  ac- 
tion, or  any  part  thereof,  and  that  the  plaintiff  at  those  se- 
veral times  resided  within  the  U.  S.  and  was  known  by 
the  testator  so  to  reside;  and  that  he,  on  the  two  iii-f  at>o\e 
mentioned  days,  acknowledged  the  debts,  or  any  part  of 
them,  and  directed  them,  or  any  part  of  them,  to  be  paid 
out  of  his  estate  after  his  dc.ith,  and  on  the  last  mention- 
ed day  directed,  in  and  by  his  will  of  that  day,  that  all 
debts  in  the  U.  A1,  should  be  paid  out  of  his  property  ia 
the  U.  S.  bequeathed  to  the  defendant,  then  the  plaintiff 
is  entitled  to  recover  the  said  sums,  or  such  part  thereof 
as  were  so  acknowledged  and  directed  to  be  paid,  or  the 
Value  thereof,  in  current  money  of  this  state. 


OF  MARYLAND  SSI 

Ifurper  and    Jinyrl,  for  the  Plaintiff,  cited    Thorn  vs. 

ins,  2  I  es.3G,  37.  n,-  s.,!,,/ 


Martin,  (Attorney  General,)   for  the   Defendant,   also 
cited  Thorn  vs.  ll'dtldn*.  J>  nice  vs.  Bruce,  2  Bos.  8f  Pull. 
:  iiolea;)  and  Sinclair  vs.  Monsieur  de  France,   Ibid 
3G3. 

CHASE,  Ch.  J.  The  court  cannot  give  the  direction  pray  • 
ed  for  by  the  counsel  for  the  plaintiff.  The  court  are  of 
opinjon,  that  the  facts  stated,  and  the  acknowledgments, 
cannot  change  the  nature  of  the  contracts  made  between 
the  plaintiff  and  the  testator  in  Martinique,  or  prevent  the 
construing  the  same  according  to  the  laws  of  France,  so 
far  as  the  same  may  be  applicable  to  the  contracts.  If  the 
contracts,  by  which  the  debt  becomes  due,  were  made  in 
France,  they  must  be  governed  by  the  laws  of  France.  No 
acknowledgment  of  the  debt  due  in  this  country  can  change 
the  original  nature  of  it.  The  great  question  depends  upon 
what  are  the  laws  of  France.  If  the  plaintiff  can  establish 
his  claim,  according  to  the  laws  of  France,  no  act  of  the 
testator  can  prevent  his  recovering  it  in  this  country.  The 
plaintiff  excepted. 

8.  The  third  bill  of  exceptions.  The  defendant  further 
offered  in  evidence,  that  the  34,925  livres  and  14  sols,  al- 
leged to  have  been  received  by  the  testator  in  France,  and 
invested  in  goods,  and  shipped  as  before  mentioned,  which 
goods  were  by  the  testator  disposed  of  in  the  U.  S.  for  his 
use,  were  part  of  the  sum  of  40,000  livres,  advanced  by  the 
plaintiff  to  the  testator  in  May  and  August  1793,  and  by 
the  testator  received  from  Madam  Jlubin  Blampre,  and 
which  are  charged  in  the  account  exhibited  in  this  cause, 
and  constitute  the  two  articles  of  12,000  livres  and  28,000 
•  livres  in  that  account,  which  are  therein  charged  as  receiv- 
ed by  the  testator  for  the  use  of  the  plaintiff,  and  on  which 
he  has  charged  an  interest  from  the  times  he  states  the 
sums  to  have  been  respectively  received  by  the  testator; 
and  therefore,  that  the  plaintiff  had  elected  to  consider 
the  whole  of  the  40,000  livres  as  money  due  to  him  from, 
his  father,  from  the  respective  times  he  received  it;  and 
that  the  plaintiff  did,  on  the  9th  day  of  June  1803,  file  the 
following  account  in  this  cause,  as  specifying  the  claim* 


IN  THE  eorirr  OF  APPKAI.> 


Dr. 

Dolls. 


£561  16    4    {1498  18 


291  15  10 


"78 


which  he  hail  against  the  defendant  as  executor  oft! 
tat  or,  for  which  he  had  brought  his  suit,  to  wit: 

"Bctijanun  Dt  Sobry,    Executor  of  Mchail  J.  Timer  dt  Laistrf, 
deceased, 

To  Leu-it  Jt.  Terrier  de  Laitfrt, 

Current's . 

1792,  Deer.  £9.  To  1236  liv res, money  of 
the  Islands,  being  the  price  of  4  .skives 
sold  and  delivered  to  the  testator  on  my 
departure  from  Martiniro  to  France,  as 
bj,  his  written  acknowledgment,  dated 
SUth  Nov.  1795,  equal  to 

Interest  thereon  from  this  day  till  21st 
May  1803,  at  5  p.  ct. 

May  21.  To  12,000  livres  tournois. 
received  by  said  testator  this  day  for  my 
use,  as  per  his  letter  of  this  date,  equal 
to 

Interest  thereon  from  this  day  till 20th 
May  1803,  at  5  p.  ct. 

Aug.  1.  To  28,000  livres  tournois,  re- 
ceived by  said  testator  for  my  use  this 
day,  us  per  his  letter  of  this  date,  equal 
to 

Interest  thereon  at  5  p.  ct  till  20th 
May  1803, 

1795,  May  22.  To  3440  livres  tournois, 
received  by  said  testator  llm  day  for  my 
use,  as  per  his  two  letters,  one  of  this 
date,  and  the  other  of  the  15th  Octo- 
ber 1795,  equal  to 

Interest  thereon   at  6  p.  ct.  till  20th 
May  1803, 


857    5     0      22S5  75 


428  12     6       114'J  67 


2000 


5333  33 


980     9    8      2614  64 


245  14    3        655  23 


117  18 


514  40 


£5483  11     7  $146: 

The  defendant  then  offered  in  evidence,  that  in  conse- 
quence of  tins  account  so  filed,  the  defendant  had  taken 
out  the  three  last  commissions  which  were  executed,  in  or- 
der to  examine  into  the  justice  of  the  claims  in  the  account 
stated,  and  the  operation  of  the  French  laws  thereon;  and 
\e  in  evidence  the  commi-^ions,  the  returns  thereof, 
and  the  evidence  obtained  thereon,  and  prayed  that  the 
court  would  not  permit  the  plaintifl'  to  change  the  nature 
of  his  claim  contrary  to  his  own  election  deliberately  made, 


off  MARYLAND: 

and  contrary  to  his  claims  as  exhibited  by  him  to  the  de-  1807. 
femhmt  in  his  said  account.  The  plaintiff  also  prayed  the 
court,  and  their  direction  to  the  jury,  that  if  the  jury 
should  be  of  opinion,  from  the  evidence  before  them,  that 
5-1,925  livres  and  14  sols,  were,  on  or  before  the  29th  of 
December  1793,  received  in  France  from  the  plaintiff',  and 
to  his  use,  by  the  testator,  and  were,  on  or  about  that  day, 
invested  by  him  in  merchandises  at  Bourdeaux^  in  France, 
for  the  account  and  risk  of  the  plaintiff;  and  that  the  mer- 
chandises were  then  and  there,  by  the  testator,  shipped  to 
the  U.  S.  for  the  account  and  risk  of  the  plaintiff',  and  that 
the  merchandise  did  arrive  in  the  U.  S.  some  time  in  or 
before  the  month  of  May  1795,  and  were  then  and  there 
received  by  the  testator  into  his  possession,  and  sold  and 
disposed  of  for  his  own  use  and  benefit,  and  the  price  there- 
of paid  to  the  testator  in  his  life-time,  then  the  plaintiff  is 
entitled  to  recover  the  amount  of  money  which  the  jury, 
from  the  evidence,  shall  believe  that  the  testator  received 
for  the  merchandise. 

CHASE,  Ch.  J.  The  court  cannot  give  the  direction  to 
the  jury  as  prayed  by  the  plaintiff.  The  court  are  of  opi- 
nion, that  the  plaintiff  is  precluded,  by  his  account  filed, 
from  going  into  evidence  to  establish  his  claim  for  the  mo- 
ney had  and  received  by  the  testator  for  his  use,  in  a  man- 
ner different  from  that  in  which  he  has  elected,  by  his  ac- 
count, containing  a  notice  of  his  claim,  to  consider  the  tes- 
tator his  debtor  for  his  use.  The  plaintiff  excepted. 

9.  The  fourth  bill  of  exceptions.  The  defendant  then 
prayed  the  opinion  of  the  court,  and  their  direction  to  the 
jury,  that  if  the  sum  remaining  in  the  defendant's  hands, 
and  retained  by  him  as  a  legacy,  or  any  part  thereof,  is 
liable  to  be  recovered  from  him,  as  a  part  of  the  successi- 
on of  the  testator,  and  to  be  made  answerable  for  such 
debts  of  the  testator  as  were  contracted  under  the  French 
laws,  which  have  their  force  and  effect  according  to  the  pro- 
visions of  those  laws,  and  which  are  to  be  paid  out  of  the 
succession,  according  to  the  rules  and  regulations  thereby 
established,  the  suit  could  only  be  prosecuted  against  him 
by  and  in  the  name  of  the  plaintiff  and  his  brother,  if  they 
have  both  jointly  takenaipon  themselves  the  management 
ami  administration  of  the  succession,  or  in  the  name  of  his 
brother,  Marc  dnlhony,  alone,  if  he  has  alone  taken  upon 


IN  M:K  t  OIRTOF  APPF.A. 

hinuc'f  rt  ration  and  mana-M-mem.  ami  not  in  the 

name  of  the  plaintiff  alone,  us  the  suit  is  now  brought. 


K.  Ch.  J.  The  court  are  of  opinion,  that  ary  cre- 
ditor may  MIO  the  executor  pro  forma,  as  he  is  called  here, 
provided  he  slum*  himself  to  i»e  a  creditor  under  the  laws 
of  the  country  where  the  contra*  -I  <-d  into.  That 

a>  In-  ts    remain  in  the  hands  of  (he  executor  pro 

forniit,  he   i»  :MI--.\  iMa'.)le   to  the    creditors;  and  if  tin 

•irplus.  it  is  to  'zo  info   the  mas*  of  the   succession, 
there  to  be  distributed  Jic.-ordin^  to  the  laws  of  suco 
of  the  country  where  tho  person  i>  domiciled. 
'   The  court  are  of  opinion,   that   personal   property  ad- 
heres to  the  person:  that  wherever  the  person     is  domicil- 
ed, the  property  ^oes  in  distribution,  according  to  I'M-  law* 
of  that  country.     Whatever  fund   in   this  country  is  an- 
'!r    I'.ir   deb'*,  i-  answerable   to  all    creditors   alike, 
(provided   they  show  them-'elvs   to  be  creditors,)  accord- 
in-'  to  the  laws  of  this  country. 

O  •/ 

If  our  laws  »ive  a  preference  to  our  citi/.ons  the  de- 
fendant should  have  pleaded  that  our  citizens  had  that 
preference. 

The  plaintiff*  if  to  be  considered  as  a  creditor,  and  in  no 
other  capacity:  and  if  he  has  not  intermeddled,  so  a^  to 
prevent  his  recovery  as  such  under  the  French  laws,  he 
niu-t  recover  in  this  action. 

The  court  arc  of  opinion,  that  if  the  jury  should  find, 
from  the  evidence,  that  the  plaintiff*,  as  heir  pure  and  HIU- 
],le,  or  as  brneiiciary.  heir,  has  not  intermeddled  with  the 
rstate  or  succession  of  the  testator,  and  that  the  te- 
\vas  indebted  to  the  plaintiff,  at  the  time  of  his  death,  that 
then  the  plaintilV  has  a  ri^ht  to  support  thi«  suit.  Hut  the 
court  do  not  mean  to  dr  i  •!<•,  that  an  interim-  ddlin^  <> 

'ill'  in  the  quality  of  heir  pure  and  >i'iiple.  or  a-  heir 
with  benefit  of  inventory,  would  d  -fc-at  his  ri^ht  of  recovery 
in  this  action,  that  <|iie»tion  bcin^  ^\\\  open. 

The-  court  are  of  opinion,  that  the  a—  ru  in  the  han<! 
the  defendant,  a*  executor  of  the  testator,  are  liable  to  the 
•lit  of  debts  due  to  the  citi/.ens  of  France  from  the 
•or,  contracted    there,  or   in  the   colonies  of  /' 
and  that  the  defendant  will  be  only  accountable  to  th> 
tan.'  •(  utor.  the  heir  pure  and  simple,   or  heir 

with  benefit  of  inventory,  for  t!ic  surplus  remaining. 


OF  MARYLAND. 

payment  of  debts,  which  surplus  is  distributable  according        1807. 
to  the  laws  of  France.     The  defendant  excepted. 

1 0.  The  ffth  bill  of  exceptions,     the  defendant  further 

offered  in  evidence,    that  the  testator  bein";   a  French  citi- 

o 

zen,  and  having  his  domicil  in  the  Island  of  Mnrtiniquet 
died  there,  having  first  duly  made   the  wills  and   codicils 
herein  before  mentioned  and  set  forth,  and  that  at  the  time 
of  his  death  lie  was  possessed  of  certain   property   in  the 
If.  S.  and  had  certain  debts  due  to  him  therein;  that  Pe- 
chicr,  in  that  Island,  as  testamentary  executor,  took  upon 
himself  the  management  and  administration  of  the  succes- 
sion of  the  testator,  according  to  the  French  laws;  that  the 
succession,  according  to  the  laws  of  France,   is  the  whole 
mass  of  his  estate,  real,  personal,  mixed,  rights  and  claims, 
whatsoever  and  wheresoever,    of  which  the  deceased   was 
seized  or  possessed,  or  to  which  he  had  right  or  title  at  the 
time  of  his  death,  and  which,  by  the  French  laws,  were  an- 
swerable in  the  first  place  for  payment  of  debts,  and  then 
of  legacies,  and  after  the  payment  of  debts  and  legacies,  the 
residue  to  be  enjoyed  by  the  heir  of  the   deceased,    if  he 
had  only  one  child,    or  if  more   than   one,    to  be  divided 
equally  between  them.     That  by  the  said  law  all  the  chil- 
dren constitute  but  one  heir,   and  are  equally   entitled  to 
the  residue,  where  there  is  a  residue.     That  Peckicr,    by 
taking  upon  himself  the  management  and  administration  of 
the  succession,  was  the  person  whose    r)uty   it  was  to  take 
into  his  possession,  and  to  collect,  receive  and  obtain,  the 
whole  of  the  succession,   and  to  pay  and  satisfy  thereout 
all  debts  due  from  and  claims  against   the  succession;  and 
afterwards  to  deliver  over  the  residue  to  the  heirs   of  the 
testator,  unless  the  heirs,  or  some  one  of  them,  chose  to 
take  the  administration  and  management  of  the  succession, 
out  of  the  hands  of  Pechier.     That  by   the   French  laws 
the  heir  or  heirs,  or  either  of  them,  have  an  exclusive  right, 
in  the  first  instance,  to  take  upon  themselves  the  manage- 
ment and  administration  of  the  succession,  and  if  they  do 
not,  and  the  testamentary  executor  acts,   yet   they   may, 
whenever  they  please,  interpose  and  take  upon  themselves 
the  management   and   administration  of  the   succession. 
That  the  testator  left  two  sons,   his  heirs,  both   of  whom 
are  now  living,  the  plaintiff,  and  his  brother  named  H/arc 
4nthoiuj  Terrier  dc  Laislre^uA  that  they,  sometime  in  the 
VOL.  n.  29 


CASES  IN  'i  IIF>  conn-  OK  APPEALS 

1807.        month  of  July  in  the  year  1T98,  did  take  upon  themselves^ 
in  tin-  Maml  of  .Ihirliiu'/iifi,  the  management    ami    adini 
ni-tration  of  the  surce^inn:  and  that  I'echicr  did  then  and 
there  deliver  up  to  them  the  succession    as  far    as    it    hail 
come  to  hi*  hand-;  and  thereupon   it  became   the  duty  of 
Ihc  plaintiff,  and  his  brother,  to   take  into  their  p<.-~.--»ioii 
ihe  whole  of  the  succession,    and  collect  and    obtain    the 
debts,  &c.  constituting  part  of  the  same,  and   thereout  to 
pay  all  debts  and  legacies.     That  the  debts  and  claims  fur 
which  this  action  is  brought,  were  contracted  and  arose    in 
the  government  of  France,  and  are  subject  to  the  operati- 
on of  the  French  laws,  and  payable  out  of  the  succes-iou 
according  to  those  laws,  and  in  such  manner  as  is  by  those 
laws  provided.     That  he,  the  defendant,  according  to  the 
wills  and  codicils,  and  with  the  assent  of  Fcchier,  while  he 
had  the  management  and  administration  of  the  succession, 
obtained  letters  of  administration  in  due  form  of  law,    in 
this  slate,   to  collect  the  debts   and   other   effects,    which 
\v  ere  in  the  U.  S.  and  which  constituted   part    of  the  suc- 
cession, in  order  to  pay  thereout  the  debts   by   the  will 
charged  thereon,  and  to  hold  the  residue  agreeable  to   the 
dispositions  of  the  testator,  and  the  French  laws  operating 
thereon.     That  the  sum  remaining  in  his  hand*,  after  pay- 
ment of  the  debts,  is  retained  by   him,    he   claiming   the 
same  as  a  legacy  given  him  by  the  testator.     That  no  cre- 
ditor of  the  succession,  or  other  person,  can,  by  the  French 
lav/.-,  brin  £  >uit  against,  or  have  any  claim  against  a  lega- 
tee, who  hath  obtained  his  legacy  for   which  he  ran  j 
cute  any  suit,  unless  the  succession  is  insolvent,    and  that 
the  insolvency  must  be  established  by  judiciary    proceed- 
ings in  a  French  court,  of  competent  jurisdiction; and  that 
there  was  no  evidence  given   by  the  plaintiff  of  such   pro- 
ceedings having  been  had.     The  plaintiff  further  offered  in 
evidence,  thrft  by  the  laws  of  Frttncc,  and  her  cnlonir-.    a 
co-heir  of  a  person    deceased,  with  benefit   of  inventory, 
who  is  al-o  a  creditor   of  the   deceased,   preserves  in    all 
cases  his  rights  as  a  creditor,  and  may  recover  his  debt  out 
of  the  estate  of  the  deceased    wherever   he   can    find   it, 
without  prejudice  to  his  rights  as  a  co-heir;  and   that  the 
plain liiT  in  this  action  never  did  act  as  co-heir   of  ti 
tate  of  the  testator,  nor  in  any  manner  intermeddle    with 
his  estate.     The  plaintiff  then,  upon  the  whole  statement 
in  this  case,  prayed  the  opinion  of  the  court,  and  their  di- 


OF  MARYLAND.  22? 

rection  to  the  jury,  that  if  the  jury  should  be  of  opinion,  1807. 
from  the  evidence  befjre  them,  that  the  testator  did  pur- 
chase from  the  plaintiff,  in  the  Island  of  Martinique.,  some- 
time in  or  befoie  the  year  1793,  four  slaves,  the  property 
of  the  plaintiff,  and  did  also  receive  from  the  plaintiff,  on 
loan,  at  Bourdeaux,  in  France,  on  or  about  the  21  st  of  May 
17P3,  the  sum  of  12,000  livres,  current  money  of  France, 
and  on  or  about  the  1st  of  August  1793,  the  further  sum. 
of  28,000  livres  like  money,  and  on  or  about  the  22d  of 
May  1795,  the  sum  of  §170  current  money  of  the  U.  S. 
to  be  employed  for  the  benefit  ol  the  testator,  and  account-, 
ed  for  with,  or  repaid  to  the  plaintiff;  and  that  the  testator, 
at  the  time  of  his  death,  was  possessed  of  personal  proper- 
ty in  this  state,  and  elsewhere  within  the  U.  S.  to  the 
amount  of  SI  3, 092  68,  and  bequeathed  the  same  to  the 
defendant  by  his  will,  bearing  date  at  Martinique,  on  the 
14th  of  April  1797;  and  that  the  defendant  duly  proved 
ihe  said  will  in  the  orphans  court  of  Baltimore  county,  in 
this  state,  and  obtained  from  that  court  letters  testamentary 
on  the  will,  and  took  upon  himself  the  burden  and  execu- 
tion thereof,  and  received  into  his  possession,  as  executor, 
the  personal  property  of  the  testator,  then  the  plaintiff  is 
entitled  to  recover,  as  well  the  value  of  the  slaves,  as  the 
several  sums  of  money  received  by  the  testator,  provided 
there  be  assets  sufficient  to  pay  the  same,  and  if  not,  thci; 
so  pro  ruta* 

Harper  and  Boyd,  for  the  Plaintiff,  cited  7he  Dutch 
West  India  Company  vs.  Van  Moses,  1  Sir  a.  612.  2  Hu- 
bcrus,  B.  1,  tit.  3  p.  26,  cited  in  Emory  vs  Greenough,  3 
Dull.  Rep.  370,  (note.)  Melan  vs.  The  Duke  of  Fitz- 
jamcs,  \  Bos.  4*  full-  142.  Robison  vs.  Bland,  2  Burr. 
1077,1078,1083.  Imlay  vs.  Ellefsen,  2  East,  455.  Ne- 
gro Hector  vs.  De  Kerlcgand,  3  Harr.  <$•  Mullen.  185. 
Wright  vs.  Nutt,  1  //.  Blk.  Hep.  152.  Folliott  vs.  Og- 
den,  Ibid  123.  S.  C.  3  T.  R.  734.  3  Bac.  M.  30.  Hun- 
ter vs.  Potts,  4  7.7?.  182,  183,  184,  185.  Pigott  vs, 
Aittson,  in  Court  of  Chan.  Sinclair  vs.  Monsieur  dc, 
France,  2  Bos.  <$•  Pull.  364,  (note.)  Mostyn  vs.  Fubri- 
'gas,  \  Cow  p.  1 74.  fiixon's  Ex'rs.  vs.  Eamsay's  Ex'rs. 
3  Crunch,  324.  Talleyrand  vs.  Bonnlanger,  3  Vrs.  448. 
Thorn  vs.  Tf'alkms,  2  f'es.  56.  2  FonM.  442;  and  Do- 
mat,  349. 


228  CASKS  IN  THE  COURT  OF  APPEALS 

1807.  Martin,  (Attorney  General,)    for  the   Defendant,    uk-d 

Harper  vx.  Hampton,  1  Jlarr.  «$'  Johns.  45.1.      -  J/nbcrus, 
JJ.  1.  tit.  3,  p.  56.      Ci'mtninz    r.?.   '/'/»*•  Avfr,  1  //«rr.  <V 
Jo/ins.  540.      Mrhtn  vs.   The   Duke  of   /iVr/wr/jr*,    1  7?o». 
4'  /'*///.   M~.      7'al/eynind   vs.  Jtoimlangcr,    3    f'w.  -I 
and  J'a/f//,  B.  2,  c/«.  8,  *.  110,  111. 

CHASE,  Cli.  J.  delivered  (lie  opinion  of  (he  < nurt.  Thp 
court  are  of  opinion,  (hat  it  is  a  general  prinupli',  \\li"uli 
admits  of  a  few  exceptions,  that  in  construing  conti. 
made  in  foreign  countries,  the  courts  aie  governed  by  due 
lex  loci  as  to  what  respects  the  e—ciu-e  of  (he  contractj 
that  is.  the  rights  acquired,  and  the  obligations  treated  by 
it.  That  the  remedy  or  mode  of  enforcing  (he  contract,  L> 
to  be  conformable  to  the  laws  of  the  country  where  the  ac- 
tion is  instituted.  IHycon's  ex'rs.  vs.  Ramsay's  cx'rs.  3 
Crunch, 

The  exceptions  to  construing  contracts  according  to  the 
lex  /oct,  which  at  present  occur,  are 

First.  Where  by  the  terms  of  the  contract  it  \»  to  bp 
executed  in  another  country:  there  the  parties  to  it,  by 
common  consent,  adopt  the  laws  of  that  country  as  the  rule 
of  decision. 

Secondly.  Where  the  contract  is  contra  bonos  more*, 
as  for  the  price  of  prostitution — Such  a  contract,  though. 
le^al  in  some  countries,  would  not  be  enforced  in  England, 
or  in  this  state. 

The  court  are  also  of  opinion,  that  unless  the  jury  should 
be  satisfied,  according  to  the  laws  of  Fruncr,  that  a  co-luir 
with  benefit  of  inventory,  who  is  also  a  creditor,  cannot 
recover  in  the  quality  of  creditor,  without  renouncing,  that 
then  the  plaintiff'  is  entitled  to  recover  whatever  (he  jury 
may  find  due  on  the  contracts  made  in  France,  according 
to  the  law*  of  France. 

The  court  are  also  of  opinion,  that  as  to  that  part  of 
the  sum  which  is  claimed  under  the  contract  made  in 
•America,  the  plaintiff'  is  entitled  to  recover,  without  any 
regard  to  the  laws  of  France,  whatever  the  jury  may  find 
due  thereby. 

The  court  are  also  of  opinion,  that  upon  principles  of 
common  sense  and  justice,  no  part  of  the  testator's  estate 
is  subject  to  distribution  among  his  co-heirs,  but  the  sur- 
plus or  residuum  which  may  remain  after  payment  of  all 


OF  MARYLAND. 

the  debts  and  legacies;  and  that  a  debt  due  to  one  of  the  1807 
co-heirs  is  as  much  entitled,  on  principles  of  justice,  to 
payment,  as  a  debt  due  to  a  stranger;  and  that  it  is  incum- 
bent  on  the  defendant  to  prove  to  the  jury  that  there  is  a 
law  of  France  which  extinguishes  the  right  or  claim  of  the 
co-heir  creditor,  with  benefit  of  inventory,  unless  he  re- 
nounces as  co- heir. 

•  (a)  The  court  arc  also  of  opinion,  that  the  laws  of  France 
are  matters  of  fact  to  be  found  by  the  jury,  upon  evidence 
to  be  produced  to  them;  and,  unless  the  jury  find  some 
law  of -France,  which  extinguishes  the  claim  or  right  of  re- 
covery of  the  plaintiff,  that  the  plaintiff  has  a  right  to  re- 
cover in  this  case,  whatever  the  jury  may  find  to  be  due 
to  him  upon  a  full  investigation  of  the  evidence.  The  court 
also  inform  the  jury,  that  it  does  not  appear  to  the  court 
that  there  is  any  law  of  France  which  is  a  legal  impedi- 
ment to  the  the  plaintiff's  recovery.  The  defendant  ex- 
cepted. 

Harper,  for  the  Plaintiff,  before  the  jury,  upon  the  laws 
of  France,  cited  1  Doniat,  346,  347,  348,  349;  £  2  Cou- 
tume  dc  Paris,  252,  299,  302, 

Martin,  (Attorney  General,)  and  Purviance,  for  the  De- 
fendant, also  before  the  jury,  referred  to  the  testimony 
taken  under  the  several  commissions  issued  in  this  cause. 
2  Pothier,  116.  1  Poth,  77,  2  Coulume  de  Paris,  art. 
500,  301,  252,  302,  303,  304,  307,309,317,  31 8,  344,  and 
the  commentary  of  Fcrriere  on  those  articles.  Serres,  304, 
505,  400,  311,  312,  363,  309,  351,  393,  421,315,  S22r 
323,  314,  308,  262.  Ordinance  of  Lewis  XIV,  art.  1,  4. 
1  Coutume  de  Paris,  art.  179.  13  Vin.  M.  50,  414. 
Pcake's  Evid.  48;  and  Collet  vs.  Keath,  2  East,  260, 

Verdict  and  judgment  for  the  plaintiff,  and  the  defen- 
dant brought  a  writ  of  error  to  this  court. 

The  cause  was  argued  before  TILGHMAN,  BUCHANAN, 
NICHOLSON  and  GAXTT,  J.  by 

Winder,  for  the  plaintiff  in  error,  and  by 
Harper  and  Boyd,  for  the  defendant  in  error. 

(~a_)  This  part  of  the  court's  opinion  was  given  by  them  after 
the  argument  of  ail  tin-  points  of  law  in  the  cause,  and  while  the 
attorney  general  was  addressing'  the  jury. 


v  tsES  IN  Tin;  mruT  OK  AP 

TIM    <  concurred    in  the.   opinions  of  the 


t,  in  the  //*/.  fnurl/i.  and  fijth  bills  of  exceptions, 
talwcii  by  the  defendant  iu  that  court. 

M'Duualil 

JUDO  MI-  M    AH  I  KM  ED. 


P)  fF.MBER.  IIoLUXGSWORTH,  C/   I'.  V !  'DoNAI.D,   tt  (ll 

APPFM.  from  a  decree  of  the  court  of  chaacerv 


Tw^S  •  ie  bill  of  complaint.      Tin-  material  f;u  N   wore 

fcLiniT*  .'X'VM'^ — The  complainant  Mac/iel,  (one  of  the  appellants)  whilst 
Mi"'"«ivVlh-rr!i!"  *he  was   solo,  on  the  21st  of  September  \7  -ei/ed 


..hwr».  r.r-  in  fee  of  the  tracts  of  land  called  A<Y/i  A»rA-  ami 

•mi*  vow*    the  Tiiiilur  Stck.     A  mama"*  settlement  took  place  between 

Mill    loin!  tun'  : 

».«•%; and  in  •  »«•  the  complainants,  on    the   2'.  , umber   ir!»<),   and. 

fl»fdtr'!«m"llMr'  A'/('c  Goodwin  was  appointed  trustee.    This  settlement  was 
follows:  "This  indenture,  made  the  21st  of  September 


"i™  conv,  janie  between  the  said  Jesse  and  Itachcl,  stated,  that  the  -aid 
JrVa*  ^•'.>}<^r-Jfssc  granted,  &c.  to  the  said  Lyde,  and  the  said  7iW//7, 
•p'proprfcivd1  "by  with  the  consent  and  approbation  of  the  said  Jesse,  grant- 

tmn.or  limiiir.oM  ed  &c.  to  the  said  //'(/'.  liis   1, ohs  and   assigns,  all 

:  acts  of  land  called  Jficfi  Seek  and  UvwimFs  Tiinlnr  Seek, 

tu  create  an  r«fa(e 
in  tie  the  lim- 
iiatiun  mint  he 

t,.  .1  s.  »i,.l  Lit  1>.  11  v.  '.nit  to  rrentr  a  fee  tail,  to  .1  S.  ainl  tin'  )icii-«  nf  liij  I  .  .!<  </<•  rfrfttre 

itit,  are    u.it>    •  '      i.|ilaiul\  !>• 

>»nee.  rreat- 


»al«-? 

.  j  /««<•  rewrf  C»M    |  i^iiiti-  in  .nij •  uilii  r    •  :i  ili-cd  of  bargain  and 

•  » ? 


»m^»rrr  a  tni<t  .»Mie  ittn'-Acr-Wi1  '"  'h-  rrflitun  «r  ,,  • 

•  ;•  j.a  i  I  IT  ii  I.  r.  -i  in     Mini   to  anosinT.  nnlcti  hy  flne,  comti 

r«Trry  or  .  >  •  il  •  \.  •  uteil    and    a.  :  fouling  tu  >;  .iVi!    l>>  the    .n :     ' 

<  A.    47. 

ani.ir.  In-Ill    t-i   Ix 

iii.|t-.|-t  or  tin  all  ing 
,  t  ..f   Iji.i?,  , 

word<  i  •  :.l  inn  bciujip  ml  by  1)10  •iili«tiiu'i<>n  ol  •  nular  import 

.  'inly  upon  u  !>i.l  ul'  renew,  or  •  bill  in  the  11*- 

A  !..  *  '  mnilr,  hit  heforr  enrolment. 

' "     mu»t  In    c<  liiidrrrd  »  I  by  the  ro» 

.IT.  or  tor  «ome  mar 

. 

;                                                                             ' 
•     ••        .   i  .,«...    'i         t.    •  .         ••!.--  I    •    -       !..    •.     -    .         .     ,         if.   c  '..i\  ^   ! - 


' 

•  •  11  aceotdui^y. 

At  tu  lh«  dii.u>clli<u  U-iv...vii  t.utu  ixicutcd  aitj  <  \<  viilo.j  . 


di.- 


OF  MARYLAND.  £3t 

rtto  have  and  to  hold  the  said  lands,"  &c.  "unto  the  said  180 
Lvde  Goodwin,  his  heirs  and  assigns,  forever.  In  trust 
nevertheless,  and  for  the  uses,"  &.c.  "That  she  the  said  Ra- 
chel  shall  have,  hold,  occupy^  possess  and  enjoy,  the  said 
lands,  with  the  rents,  issues  and  profits  thereof,  for  and 
during  the  natural  life  of  the  said  Rachel,  and  the  same 
convert  and  apply  to  her  separate  use  and  benefit,  without 
any  let,  trouble  or  impediment,  from  the  said  Jesse,  in  as 
Full  and  ample  in^nner,  to  all  intents  and  purposes,  as  it* 
she  the  said  Rachel  hud  remained  a  feme  sole,  and  unmar- 
ried; and  from  and  after  her  decease,  that  Thomas  Parkin, 
and  his  heirs,  for  ever,  shall  have  and  possess  the  said 
lands  and  premises;  and  in  case  of  his  the  said  Thomases 
death,  without  lawful  issue,  the  said  lands  and  premises 
shall  revert  to,  and  be  vested  in,  the  said  Rachel,  and  her 
heirs,  forever,"  &c.  The  marriage  took  eft'ect,  and  rin  the 
4th  of  January  1796  the  complainants,  together  with  Lyde 
Goodwin,  executed  a  deed  to  Thomas  Parkin,  the  son  of  thfc 
female  complainant  by  a  former  marriage,  which  purports 
to  convey  to  him  an  estate  in  fee  simple  in  the  said  lands* 
and  was  acknowledged  as  follows:  "Baltimore,  county,  set. 
On  this  15th  day  Of  February  1796,  personally  appeared 
Jesse  Hollingsworth  and  Li/de  Goodwin  before  us  the  sub- 
scribers, two  justices  of  the  peace  for  Baltimore  county,  and 
severally  acknowledged  the  aforegoing  instrument  of  writ- 
ing to  be  their  act  and  deed,  according  to  the  true  intent 
and  meaning  thereof.  At  the  same  time  came  Rachel,  the 
wife  of  the  said  Jesse  Hollin^sworlh,  and  being  by  us  pri- 
vately examined  apart  from  and  out  of  the  presence  and 
hearing  of  her  said  husband,  did  acknowledge  the  afore- 
going instrument  of  writing  to  be  her  act  and  deed,  accord- 
ing to  the  intent  and  meaning  thereof,  and  declared  that 
she  made  and  executed  the  same,  and  this  her  acknow- 
ledgment thereof,  voluntarily  and  of  her  own  free  will  and 
accord,  without  being  induced  thereto  by  threats  of  or  ill 
usage  from  her  said  husband,  or  through  fear  of  his  dis- 
pleasure." This  acknowledgment  was  signed  by  the  jus- 
tices. Parkin,  the  grantee,  died  in  possession  of  the  lands 
in  1797,  of  full  age,  and  by  his  will  devised  the  same  in  fee 
to  his  mother,  one  of  the  complainants.  Certain  creditors 
of  Parkin  and  M'Kenna  filed  a  bill  in  the  court  of  chan- 
cery against  the  complainants,  under  the  devise  to  the  mo- 
ther as  devisee  of  Parkin,  or  as  his  heir  at  law,  stating  that 


CA?F.>  f\  THE  COI-RT  OF  APPEALS 

f'urLin  died  seized  in  fee  of  tlie  lands:  that  they  were  h*M 
creditors;  that  Parkin  and  A/'AVwm  were  insolvent,  and 
i;  a  sale  of  the  land.     The  complainants  answered 
the  bill,  admitting  Parkin  tube  seized  in  fee  of  the  land*, 
and  that  he  devised   the  same  to  his  mother,  one  of  the 
complainants.     A  decree,  for  a  sale  took  place;  S.  (.'Imm-, 
junior,  \vas  appointed  trustee  fur  making   the  sale,    who 
made  a  sale  of  part  of  the  lands,  and  made  a  report  thereof 
tb  the  chancellor,  wVu-U  was  rmilinmti.  \-><  the  consent  of 
the  complainants.     After  the  :!  the  con- 

firmation thereof,  the  complainants  alleged,  they  had  dis- 
covered that  Parkin  never  was  seized  of  the  lands  in  fee, 
but  that  the  estate  in  fee  belonged  tu  the  complainant,  /•'«- 
cAc/;and  that  the  deed  from  the  complainants  to  Parkin, 
•was  not  such  a  deed  as  passed  the  estate  of  a  married  wo- 
man. The  prayer  of  the  bill  was,  that  the  chancellor  would 
decree  the  sales  of  the  lands  to  be  null  and  void,  &c.  and 
lor  general  relief,  &.c. 

HANSON,  Chancellor,  (October  term  1805,)  decreed,  that 
the  bill  be  dismi<-.e;l.  Xc.  From  this  decree  the  complai- 
nants appealed  to  this  court. 

The  cause  was  argued  at  December  term  1806,  before 
CHASE,  Ch.  J.  TILGHMAN,  BUCHANAN,  NICHOLSON  and 
GAMT,  J. 

Key,  for  the  Appellants,  contended,!.  That  the  deed 
of  theSJst  of  September  1790,  b^ing  a  marriage  settle- 
ment, vested  the  fee  of  the  lands  in  Goodwin,  as  trustee, 
for  the  sole  and  separate  use  ot  Mrs.  OolKngncortfi,  for 
life,  of  the  rents,  issues  and  profits  thereof.  2.  In  trust 
for  Parkin,  an  estate  tail.  3.  In  trust  of  the  remainder 
in  fee  to  Mrs.  Hollingncorth,  and  her  heirs.  4.  That  no 
power  of  disposition  is  given  by  the  tru>t  deed  of  the 
therein  mentioned.  5.  That  the  deed  of  the  4tli 
of  January  1796,  does  not  pass  any  estate  or  interest 
from  Mrs.  Hollinsmcorth.  6.  That  an  equitable  estate  can 
e  be  conveyed  by  a  fnne  covert,  unless  the  law  is 
umiplied  with,  than  a  legal  estate  can,  if  there  is  no  p;i\v- 
cr  ^i\en  in  the  trust  deed  pointing  out  a  different  mode. 
7.  That  no  act  done  by  Mrs.  Ilullingsworth  does  dne-t 
her  estate  in  the  lands. 

On  the  Jir.it,  second,  third,  and  fourth  point*,  lie  ii 
cd,  that  the  trusts  created  by  the  deed  of  171'0,   "tie  not 


OF  MARYLAND.  833 

executed  by  the  statute,  and  that  where  they  were  not,  1807. 
the  terms  of  the  trust  must  be  governed  by  the  intention 
of  the  grantor.  That  the  legal  effect  and  import,  and  the 
particular  meaning  and  operation  of  that  deed,  created  an 
estate  tail  in  Parkin,  and  the  lands  were  not  answerable 
for  his  debts,  To  show  that  the  words  in  the  habendum 
of  the  deed  created  an  estate  tail,  he  cited  2  Roll.  Ab. 
tit.  Grant,  65,  pi.  25.  Ibid.  68,  pi.  28.  Co.  Lilt.  21,  a; 
and  Shep.  T.  52,75,  103,  113. 

On  the  fifth  point,  he  referred  to  the  act  of  1715,  c/t. 
47.  Webster's  Lessee  vs.  Hall,  2  Harr.  fy  Ml  Henry.  19. 
Flanagan's  Lessee  vs.  Foung,  Ibid  38.  Lewis's  Lessee 
vs.  Waters,  3  Han.  $  M'Hen.  430.  Jacob's  Lessee  vs. 
Rraner,  1  Hctrr.  S?  Johns.  291.  Peddicoart's  Lessee,  vs. 
Riggs,  Ibid  293.  Hawkins's  Lessee  vs.  Burr  ess,  Ibid  513. 
The  Corporation,  $c.  vs>  Hammond,  Ibid  580.  Heath's 
Lessee  vs.  Eden,  Ibid  751;  and  Greene  vs.  Muse  4"  En- 
nails' 's  Lessee,  (ante  62.) 

On  the  sixth  point,  he  cited  Shep.  T.  507.      Gilb.  L.  of 
Uses,  1,  2,  244.  traits  vs.  Ball,  1  P.  Jims.  109.      2  Blk. 
Com.   337.  Banks  vs.  Sutton,  2  P.  ll'ms.   713.  North  vs. 
Champernoon.     2  Chan.  Ca.  78;  and  Culvert's  Lessee  vs, 
Eden,  2  Harr.  4-  M'Hen.  336. 

Harper,  for  the  Appellee,  contended,  1.  That  this  was 
substantially  a  bill  of  review,  on  the  ground  of  new  mat- 
ter discovered,  and  must  be  so  considered;  and  in  this 
view  of  the  bill,  it  is  liable  to  four  objections — 1st.  It  is 
not  in  time.  2d.  It  is  without  affidavit  or  leave.  Miff. 
34.  3d.  It  is  not  for  newly  discovered  matter.  Chan. 
Pr.  tit.  Rill  of  Review.  Miff.  34.  And  4th.  If  tin's  could 
be  considered  as  newly  discovered  matter,  it  is  still  not 
ivithin  the  rule.  It  must  be  matter  which  the  party  had 
previously  no  means  of  knowing.  Ibid. 

2.  That  Mrs.  HoHingsworth's  acknowledgment  of  the 
deed  ot  1796,  is  sufficient,  the  act  of  1715,  ch.  47,   not 
prescribing  a  formula   which   must  be  strictly  pursued. 
Webster's  Lessee  vs.  Hall,  2  Harr.  Sf  M'Hen.    19.    Pat- 
ttson's  Lessee  vs.  Chew,  \  Harr.  $•  Johns.  587,  (note.) 
Gittings's  Lessee  vs.  Hall,  in  this  court,  on  appeal. 

3.  That  Parkin,   under  the  deed  of  1790,   had  a  re- 
mainder in  fee  simple,  and  not  in  tail;  and  that  such   a 
limitation,  applied  in  a  deed  to  a  legal  estate,   either  at 
common  law,  or  by  way  of  use,  would  give  a  fee  simple, 

VOL.  ii.  30 


CASES  [NTHBCOURTOf  APPEALS 

1807.         lie    ei'ed    .»  li'lf.   Com.    107.      Lilt.    Sect.    SI.    Co.    /.i//. 

.  u.     .'/brahmn   r*.    7V  r8,      A//e 

CooAe,  .-/HI.  114(>.      1  .      /'itra 

vs.    Yard!ij,    /  !.     /./.'/.    2.>S.    7'nnihui  . 

Cooper,  Cro.  ./«.  47  /•«.  7>'r/7rr,  C</r///. 

&    S.  C.   1   A 7.   AV/i/ui.  101.  S.  C.   .1  Sail;.  39fi 
That  trust  c>t,r  v.-riiotl  in   their  creation,    limita* 

lion  aim  extent,  by  all  t!ic  same  ruK-s  d"  construction, 
which  apply  t»  .  ho  citeil  2  lilk.  Coin. 

T.  .10:.    7^/t.f  o/  \orfolk*s  case,  3  C/^/.-j.  r</. 
P/J//J/W  TVS.  Philip*,  1    A  /r//».v.  35.     //"c//.v  r.«.  7Ar//,  7A/c? 
109.    Hanks  w.  V/tUnn,  C  /'.  ////i*.  713.     Jy>jfs  rs. 
^o»,  1  77ro.    Chan.  C<t.  1212.   Philips  iw.    Hf^'^ey,  3  T'es. 
Jr.    127.   Bashaw  rs.    S/jrnrrr,  78.    ^'«r//»   ?-5. 

Baldwin,  2  r«.  (»!'>.  :  7JmW.  10.  1  Fearnc,  IGfi.  17«). 
Clenorchy  vs.  liosvilfe,  ('a.  temp.  Finch,  .3.  7/7/r</  /•<-. 
Jlnr.Hri/,  e2  J"  Peacock  trr,  11,1.1  1 '.>.". 

Daffornc  vs.  Goodman,   Ibid  3G.1.    7/VA/;  vs.    JJ'cbb,  I  7?^ 
r    r*.    Kilbltr  ">7.     2 

1'li.it  .ulinittinj;  the  acknowledgment  to  be 
ineflectual,  and  Parkin  to  have  only  an  estate  tail,  vith 
remainder  over  in  fee  to  his  mother,  until  the  interest  dur- 
inu;  her  life  is  at  end,  the  estate  is  liable  for  J'urkin's 
debts;  and  that  this  application,  if  free  from  all  other  ob- 
jections, is  prcmatur'e.  lie  cited  Lord  Iiardn'ichfs  obser- 
vations in  Pan-let  vs.  JJclaval,  2  1'es.  660. 

Martin,   in  toply.     7.   As  <o  the  rjucsfion   what  estate 

d  !)y  the  deed  of  17'.)'),  he  cited  Co.  Lilt. 
1   AW/.  M.  8.>8.       Turnni'in  t     )/>er,  Cro.  ,/ar. 

BamJieJdvs.  P^'nt.n.  1  /'.  /T/^v.  ."7,  f'/i.;    Perkins,  sect. 
173.     2.    He  contended  that  the  court  of  chancery  deter- 
mines what  estate  passes  under  the  tnisN:  and  wl... 
interest   that  court  determines  to  exisf,  goes  as  a 
estate  at   law.      He   cited  5  Hac.  M.  tit.  T.vrv  A-  '/ 
508,  552,  354,  379,  S8G.      f.'ilti.  Law  cf  f'xrs,  161,  162. 

3.  As  to  what   is  an  r\cc;.ii-d,  and  what    is   an   executory 
trust,  he  cited  2  Fun'il.  50,  (note.)     Ibid  40(),   (note,  t\.) 

4.  As  to  the  le«al  tfioct  of  the  deed    of  17DG,  lie   i,  : 

to  the  act  of  1713,  <••'/.  -47  U'll^cn  on  I'tna,  -:o.  \ichol- 
son'x  /!  I  Inn-.  A-  M'lfin.  4'l(.):  and  Son - 

d-ni'x  Ca-e,  9  ('•  /.-.  1  17.  5.  That  if  a.  feme  corrrt  holds 
»  separate  estate  under  a  marriage  settlement,  t,he  cannot 


OF  MARYLAND.  g 

convey  in  any  other  mode  than  that  prescribed  by  law,        1807. 
where  there  is  none  pointed  out  in  the  marriage  settlement.       *-— v — ' 

HolUiiKSWort 

He  citetl  2  Buc.  M.  tit.  Curlcsu.     aearle  vs.  Grecnbank, 

•>  M'Dur.aM 

3  Alk.  695.  S.  C.  1  Vcs.  298.  Roberts  vs.  Dixwelt,  1  Alk. 
GOT.  6.  Whether  the  appellants  have  a  right  to  bring  the 
present  bill,  if  considered  as  a  bill  of  review  upon  dis- 
covery of  new  facts,  or  as  an  original  bill,  he  cited  Milf. 
35,  74.  1  Han:  Chun.  Pr.  306.  Hind's  Pr.  38.  Anony- 
mous, 3  Atk,  17.  ^(orris  vs.  Le  Neve,  Ibid  2G,  35,  3?. 

Curia  adv.  vitlt. 

At  the  present  term  the  opinion  of  the  court  was  de-v 
livcred  by 

CHASE,  Ch.  J.  In  this  case,  the  first  question  to  be  de- 
cided by  the  court  is,  what  estate  vested  in  Thomas  Parkin  ^ 
in  the  land  in  question,  under  and  in  virtue  of  the  deed 
from  Jesse  Hollingsworth,  and  Rachel  Lyde  Parkin,  to 
Lyde  Goodwin,  executed  on  the  2lst  of  September  1790? 

The  question  aries  on  the  following  words  in  the  haben- 
dum  of  the  deed:  "And  from  and  after  her  decease,  that 
Thomas  Parkin,  and  his  heirs,  fur  ever,  shall  have  and 
possess  the  said  lands  and  premises;  and  in  case  of  his  the 
said  Thomas's  death  without  lawful  issue,  the  said  lands 
shall  revert  to  and  be  vested  in  the  said  Rachel,  and  her 
heirs,  fui  ever." 

It  is  admitted  that  Lyde  Goodwin,  under  this  deed, 
took  a  fee  simple  in  the  lands  in  question,  in  trust  for 
Jiachel  Parkin,  during  her  life,  and  that  the  words  before 
recited,  would  in  a  will  create  an  estate  tail  in  Thomas 
Parkin;  but  it  is  objected  that  those  words  in  a  deed  will 
not  create  an  estate  tail,  and  that  a  fee  simple  passed  to 
Thomas  Parkin.. 

It  is  without  doubt  that  the  above  words  in  a  will  would 
give  a  fee  tail,  because  no  technical  words  being  necessary 
to  create  such  estate.  The  intention  expressed  by  the 
•words  of  the  testator  must  prevail  if  not  inconsistent  with 
some  rule  or  principle  of  law;  and  the  intention  is  plain 
here  that  Thomas  Parkin  was  to  take  a  fee  tail. 

In  a  deed  or  conveyance  of  a  freehold  or  legal  estate, 
technical  words  are  appropriated  by  law  to  the  creation  or 
limitation  of  particular  estates;  for  instance,  to  create  an 
estate  in  fee,  the  limitation  must  be  to  ,7.  S.  and  his  heirs, 
and  to  create  a  fee  tail,  to  /.  S.  and  the  heirs  of  his  body, 


230  <    kSES  IN   niK  (  ("  ivT  nj-  AIM'KALS 

1807.         It  is  established  that  the  words  (It  rory/orr  utio   are  not  in- 

*• — *~—'       dispeiisablv     ne<  •  nit    may    be    supplied    bv    words 

Holl.noworth 

r»  equipollent  or  tantamount,  plainly  designating  or  pon 
out  the  body  from  whom  the  heirs  inheritable  are  to  i 
or  descend. 

In  this  case  the  limitation  is  to  Thomas  Parkin,  and  his 
heirs,  and  in  case  of  his  death  without  lawful  issue,  tu  ir- 
•M-rt  to  liachd  Parkin,  and  her  heirs.  These  words  are 
comprehended  in  one  sentence,  and  contain  tlie  two  re- 
quisites necessary  to  constitute  an  estate  tail.  The  sub- 
sequent words,  "in  case  of  hi*  death  without  lawful  issue," 
qualify  and  restrain  the  generality  of  the  precedent  ex- 
pressions, (to  Thomas  Parkin,  and  his  heirs,)  and  point  out, 
unequivocally  and  plainly,  the  heirs  intended  to  inherit, 
and  confine  them  to  heirs  of  his  body.  T/K-JIHIS  Parkin 
could  not  die  without  heirs,  as  long  as  he  had  lawful  issue; 
and  in  this  case  the  words  lawful  issue,  heirs  of  his  body, 
and  issue  of  his  body,  as  words  of  limitation,  e\].iv-si\e  of 
the  quality  of  the  estato  to  be  granted,  are  of  the  same 
import  and  signification,  and  necessarily  designate  the  heirs 
intended  to  inherit,  and  do  convert  the  fee  simple  created 
by  the  first  words,  into  a  fee  tail;  for  Thomas  Parkin  could 
not  have  issue,  or  lawful  issue,  but  of  his  body. 

The  court  being  of  opinion,  that  an  estate  tail  vested  in 
Thomas  Parkin,  with  the  reversion  in  fee  to  Rachel  2*ydc 
Parkin,  under  the  deed;  and  be'm;,  aUo  of  opinion,  that 
the  said  words,  in  a  conveyance  of  a  freehold  estate  would 
create  a  fee  tail,  it  becomes  unnecessary  to  decide  the  <\ 
tion,  so  ably  and  learnedly  discussed  !>y  the  counsel,  how 
far  the  court  is  at  liberty,  in  expounding  a  deed  of  con- 
veyance creating  or  limiting;  an  use  or  trust  at  common 
law,  and  not  united  to  the  possession  by  the  statute  of 
uses,  to  reject  the  rules  established  by  the  common  law, 
in  the  construction  of  a  conveyance  «.f  a  freehold  estate, 
and  to  ^i\e  an  exposition  according  to  the  intention  of  the 
parties,  as  in  a  will. 

It  is  also  unnecessary  to  decide  on  the  nice  and  refined 
distinctions  between  trusts  executed  and  executory;  and 
the  court  give  no  opinion  on  those  questions. 

Ai  to  the  operation  of  the  deed  of  179G.     It   is  unques- 
tionable that  a  feme  covert  cannot  transfer   or  pa-s  her  in- 
terest in  land  to  another,  unless  by  fine,  con  imm  i 
or  deed  executed  and  acknowledged  according  to  the  mode 


OF  MARYLAND.  237 

prescribed  by  the  act  of  1715;  and  the  question  to  be  de-  1807. 
cidet!  by  the  court  is,  whether  the  acknowledgment  of  the 
deed  bv  Mrs.  HoUingMUOTth  is  conformable  to  the  said 
mode,  and  cfiectiuil  to  render  the  deed  operative  in  law  to 
convey  her  interest  in  the  lands  in  dispute  to  her  son  Tho- 
mas Parkin? 

The  court  are  of  opinion,  that  the  acknowledgment  is 
substantially  defective,  the  word  "fear"  being  omitted  in 
the  certificate  of  the  acknowledgment,  and  no  word  of  si- 
milar import  or  meaning  substituted  in  its  place.  The 
word  year,  in  that  part  of,  the  certificate,  means  a  particu- 
lar specific  kind  of  fear,  and  signifies  that  she  makes  her 
acknowledgment  without  being  induced  thereto  by  fear  of 
ill-usage  by  her  husband.  The  true  and  genuine  meaning 
of  the  words,  ''without  being  induced  thereto  by  fear  or 
threats  of,  or  ill-usage  by,  her  husband,"  being  fear  of  ill- 
usage,  threats  of  ill-usage,  or  actual  ill-usage. 

The  court,  in  thus  giving  their  opinion,  do  not  decide 
that  a  literal  adherence  to  the  form  of  the  certificate  is  es- 
sentially requisite,  and  that  the  omission  of  \yords  deemed 
essential,  cannot  be  supplied  by  [the  substitution  of  words 
equipollent,  or  of  similar  import  and  signification.  But 
the  court  are  of  opinion,  that  the  deed  is  rendered  valid 
and  effectual  to  pass  the  land  mentioned  therein,  to  Thomas 
Parkin,  in  fee  simple,  by  the  act  of  assembly,  entitled, 
"An  act  for  quieting  possessions,  and  securing  and  confirm- 
ing the  estates  of  purchasers,*5  passed  at  November  sessi- 
on 1807,  ch.  52,  it  appearing  by  the  certificate  of  the  ac- 
knowledgment of  Kachel  flollingsworth,  that  she  made 
her  acknowledgment  privately  and  willingly,  out  of  the 
presence  and  hearing  of  her  husband. 

wfo  to  the  question,  whether  the  present  bill  can  be  sus- 
tained? 

The  decree  of  the  chancellor  is  subject  to  his  control, 
only  upon  a  bill  of  review,  or  a  bill  in  the  nature  of  a  bill 
of  review. 

A  bill  of  review  lies  after  the  decree  is  signed  and  en- 
rolled. 

A  bill  in  the  nature  of  a  bill  of  review  lies  after  the  de- 
cree is  made,  but  before  enrolment. 

A  decree  must  be  considered  as  enrolled,  after  it  is  sign- 
ed by  the  chancellor,  and  filed  by  the  register. 


£39 


DA8ES   IN   TI1K  COURT  OK  A1»PKA1.> 


A  bill   of  review   will   only  lie    for   two    caiiM- —  I 
apparent  on  tlic  deciee,  or  for  some  mailer  relevant,  • 

'  (lie  tuneol'  the 'decree,  ami  di.-cn\eicd  since.  No- 
thing appears  on  the.  proceeding  en  llie  lir.-t  bill  l»  support 
the  pusitiou  that  there  is  etrur  apparent  on  tlie  decree,  tue. 
deed-  not  being  made  a  part  of  the  proc.ee>!. 

It  cannot  lir  supported  tor  matter  existing  at  the  time, 
of  the  decree,  and  discovered  since,  \\ithout  aflida\it  «)t 
such  inatk'r,  and  tin1  existence  of  it  at  the  time  of  ti 

;o  lay  the  foundation  for  applying  to  the  chancellor, 
for  hi»  leave  to  tile  a  bill  of  review,  and  obtaining  such 
leave. 

On  petition  s>  •  such  matter,  supported  by  affida- 

vit as  the  ground  for  filing  a  bill  of  review,    the  chancelloi 
; .is  judgment  on  the  propriety  of  inlerfeilng    or 
muddling  with  his  decree,    for  the    cause    disclosed,    and 
or  rejects  the  application   accordingly.     These  re- 
<|iii-itc-,  for  laying  the  foundation  for  the  present  bill,  not 
.nphed  with,  the  court  are  of  opinion,    tlut 
cree  of  the  chancellor,  dismijaing  the  bill,  beafliriu- 
cd,  with  coats  to  tlie  appellee, 

DKCIIEE  AKFIUMEDs 


•inKn. 


NORWOOD  vs.  NOUWOOD. 


VW!.MO      Arrr.Ai.  from  a  decree  of  the  Court  of  Chancery.     TIte 

.1i;:l's;p,';.  bill,  tiled  by  the  complainant,  EJwanl  Xon  \v  Ap- 

.)    on  the  31st  of  July  1  BOO,  stated,  that  he  and  the 

ilefendant  Suimtil  Xomood,  (now  Appellant,)  being  joint- 

ly  indebted  to  /;.  Dvhmy,  on  the  COlli  (.f  April   i 

:!!r'  to   him  their  joint   bond,  conditioned  for  the  payment   of 

In  r    ol  C,   u:>il    it-  . 

».»:.i  «"  .Ml   sterling,  and  X3£0   current   inonov,  with   in: 

in  hw    «m  ti    •  ... 

a*  »«.  i'hat  the  uefendant   having  omitted  to  pav  anv  part,  suit-; 

iii.- 

.ere  brought ;; .  !i  on  the  bond,  BQU  judgment 

-.lini'd.     That  the  complainant  paid  X  100  1  1,  current  mo- 


•tpiin.t    P.  ch»r(». 

:  ilr    li    n-l    v 

in     Id- 

\         .  ,     i    \ 


li  »(  ihrm:  ih»l  lir 

. 


:,  !mlf 


OF  MARYLAND.  830 

}»ry,  on  the  17th  of  September  1788,  and  glOOO  on  the        1807. 
28th  May  1795.     That  the  balance  due  from   him  on  the 
judgment,  after  the  deduction  of  the  payments,  amounted y 
v/ith  interest  and  costs,  on  the  29th  of  July  1800,  to  £321 
5   10.     That  the  defendant,  contriving  to  injure  and  op- 
press the  complainant,  obtained  an  assignment  of  the  whole 
judgment  against  the  complainant,  and  issued  an  execution 
tlicreon  in  his  own  name,  as  assignee,  and  threatens  to  levy 
the  whole  amount  of  the  judgment*  although  the  defendant 
is  himself  liable  for  one  half.     That  the  defendant  is  in- 
debted to  the  complainant  in  £776   15  6  current  money, 
exclusive  of  interest  and  costs,  recovered  by  the  latter  of 
the  former  by  a  decree  of  the  court  of  chancery.     That 
the  defendant  refuses  to  discount  out  of  the  judgment  any 
part  of  the  money  due  to  the  complainant.    Prayer  for  gene- 
ral relief,   and  an  injunction.     Injunction  granted,  &c. 
The  answer  of  the  defendant  stated,  that  on   the  20th  of 
April  1784,  at  the  pressing  solicitation  of  the  complainant, 
he  became  his  security  to  D.  Dulany,  in  the  bond  stated 
in  the  bill,  and  which  bond  was  given  to  renew  a  former 
bond  of  the  complainant  to  Ditlany,  for  the  sole  and  pro- 
per debt  of  the  complainant,  contracted  about  the  year  1 772. 
That  the  defendant  neither  directly  nor  indirectly  received 
or  participated  in  the  benefit  of  any  part  of  the  consideration 
of  the  said  debt,  and  that  he  signed  and  executed  the  bond  as 
the  security  of  the  complainant,  and  he  positively  denies  the 
allegation  of  the  complainant,  that  the  same  was  for  a  joint 
debt,  or  that  the  defendant  ever  received  full  or  any  satisfac- 
tion for  the  same.     He  admits  the  payments  stated  by  the 
complainant,  and  the  institution  of  the  suits,  and  recovery 
of  judgments  on  the  bond,  and  that  he  the  defendant  hath 
obtained,  as  the  surety  of  the  complainant,  an  assignment 
of  the  judgment  recovered  against  the   complainant,   as 
•was  lawful  and  just  for  him  to  do,  and  he  claims  and  in- 
sists, that  he,  as  surety  of  the   complainant,  hath  a  legal, 
just,  and  equitable  tide,  to  proceed  to  recover  the  balance 
thereon  due.     He  admits  that  the  complainant  hath  ob- 
tained a  decree  in  the  court  of  chancery   against    him    for 
the  sum  stated,  but  he  insists  that   the  complainant  cannot 
justly  claim  any  discount  for  or  by  reason   of  that  decree, 
•which  is  unjust,  and  upon  which  he  hath  prosecuted  an  ap- 
peal to  the  court  of  appeals,  anil  where  he  confidently  ex- 
pects a  reversal  of  the  decide.     He  denies    a!  I  fraud,  &c. 


£10  I    ^SES  IN  TIIK  roi'RT  OF  APPK  \1,.> 

.  Jpf  The  defendant  ur:ivo  notice  of  a  motion  to  dissolve  the  in- 

junction at  tlic  next  term. 

If  \\--ov.  Chancellor,  at  the  next  term,  on  the  motion  to 

I  an  order  continuing  the  injunction. 
There  \va«  much  testimony  taken,  and  it  was  the  object 
of  the  complainant  to  prove  that  he  had  paid  to  the  defen- 
dant more  than  His 'proportion  of  •.  ho>e 
executor  the  complainant  was,  and  that  the   debt  due    to 
I)rt!t;:n/  was  from  the   estate  cf  the  father:  and   that   the 
bond  wa*  executed  by  ihom  as  joint  obligors,  each    to  pay 
<lt.     The  judgments    obtained    by  the  executrix   of 
JJnfnnii  against  K.  and  S.    Vor/roiV,   (tlie  pavnu-nts  made 
beinj;  deducted,)  in  consideration  of  the   principal  sum    of 
money,   and  interest  due  thereon,    being  paid   by  .V. 
,  all  I'M'  riu;ht,  &.c.  of  the  plaintiff  to    the  jud-:: 
.-(I  unto  A".    \oi-ir-m  I  on  the  2-lth    of  July    ; 
>U'un,i  f"/io/,v,  F>f]iiire.  attorney  for   t  ix   of 
•y:  and  in  virtue   of  that  a-Mirmnent,  a  writ    of  fieri 
i  >d  on  the  judgment  against  /•'.   \oru<)o<l,  in  the 
name                          '•/,  as  the  a«>i^;nee  of  the  executrix    of 
J)nl(wy,  returnable  to  the  general  court  at  October    term 
1800. 

Hwsov,  Chancellor,  (June  term  1803,)  passed  the  fol- 
Icnviucr  interlocutory  decree:  The  case  is  that  of  one  of 
two  oii'.i-j; >!•••»  in  a  bond  obtaining  an  assignment  of  tlr- 

the  bond,  and  endeavouring  to  avail  himsi-lf  of  it 
i  itv;  whothcr  or  not  !>e  wa-*  such,  i-  the  main, 
if  not  the  only  question  in  dispute.     As  it  does  not  appear 
from  the  face  of  the  bond  that  the  assignee  wa-  <nd\ 
curity,  his  answer  to  the  bill   is  not  to  be   co  isidei 
standing  ^ood  if  it  be  contrary  to  the  testimony  <.t  a*  l<-.i-t 
two  uitnrxM'-,  nr  of  one  witness,  and  strong  efjui'aljle  cir- 
cum-.tan(:e».     Whether  or  not  lie  wa*  a  mere  surety  must 
then  be  determined  from  the  testimony. 

The  chancellor  must  declare  that  the  testimony  is  by  no 
means  such  as  to  convince  him  that  -V.  Xorioood  joined  in 
the  bond  with  E.  Norwood  &%  a  mere  security.     Bu; 
^  In-  did,  and  that  no  part  of  the  consideration  v 
liini  ivroivi'd  from  Dnl(ini/,  the  obligee,  if  he    received    a 
I'M-ation  from  /.'.  .V.-r'/vjorf  for  joining  in  the  bond,  he 
is  surely  to  be  charged  with  it. 


Of  MARYLAND. 

Upon  the  whole,  the  chancellor  conceives  himself  obliged  1807. 
to  decree;  and  it  is,  &c.  decreed,  that  the  parties  account 
with  each  other  before  the  auditor;  and  that  the  auditor  of 
this  court  state  and  return  the  account  to  this  court,  charg- 
ing E.  Norwood  with  one  half  of  the  bond  to  Dittany,  in 
the  bill  and  answer  mentioned,  and  giving  him  credits  for 
payments  appearing  to  have  been  by  him  made,  charging 
interest  on  the  principles  in  this  court  established,  and 
stt iking  the  balance. 

Bat  still  the  chancellor  is  by  no  means  satisfied  with  re- 
spect to  the  merits  of  the  cause.  It  appears  that  S.  Nor- 
wood received  upwards  of  ,£269  in  specifics,  as  his  share  of 
the  personal  estate  of  the  father,  when  a  far  less  sum  was 
due  to  htm;  and  it  is  probable  that  the  said  sum  was  the 
consideration  for  his  joining  E.  Norwood  in  the  bond  to 
fiulany.  The  case  is  wonderfully  perplexed  and  confused, 
probably  from  the  want  of  keeping  regular  accounts.  IF 
that  sum  was  the  consideration,  and  if,  after  deducting  8. 
Norwood's  share  of  the  personal  estate,  it  was  inferior  to 
the  one  half  of  the  bond  to  Dittany,  surely  £  Norwoods 
entitled  to  credit  for  the  deficiency.  Let  then  the  audi- 
tor state  an  account  in  a  different  way,  charging  E.  Nor* 
wood  with  the  whole  of  the  bond  to  Dulany,  giving  him 
credit  for  payments,  and  likewise  for  the  delivery  of  the 
specifics  to  S.  Norwood,  deducting  S.  Norwood's  share  of 
the  personal  estate.  The  account,  when  returned,  shall  be 
subject  to  the  opinion  of  the  chancellor,  ori  exceptions,  &c. 
The  truth  is,  that  in  the  present  state  of  affairs  the  chan- 
cellor does  not  feel  himself  competent  to  pass  a  final  de- 
cree to  satisfy  himself.  He  knows  not  whether  in  the  ac- 
count in  another  cause  between  the  parties,  E.  Norwood, 
hath  not  had  credit  for  the  said  sum.  Let  the  auditor  ex- 
amine the  former  account.  If  already  E.  Norwood  has 
received  a  credit  for  the  said  sum,  probably  he  ought  to  be 
charged  with  the  whole  of  the  bond  to  Dulany.  However, 
the  whole  is  open  to  examination  and  controversy. 

The  Auditor  having  reported,  and  both  parties  having  ex- 
cepted  to  some  one  of  the  accounts  stated, 

HANSON-,   Chancellor,  (July  25,  1804.)     After   hearing  • 
the  exceptions  of  the  parties,  and  the  ingenious  arguments 
of  counsel  relative  to  the  statements  of  the  auditor  made 
vender  the  decree  of  the  3d  of  August  last,  the  chancellor 
VOL.  ir.  31 


-  1 N  '!  HK  COURT  OP  APPEALS 

1807.  has  bestowed  the  most  anxious  attention  to,  and  has  >ong 
deliberated  on  a  cause,  than  which  he  never  attended  tt 
one  more  perplexed  and  difficult.  Tlie  testimony  i-  \«>rv 
Jar  tVom  being  satisfactory,  and  yet  it  appears  unquestion- 
ably entitled  to  Mime  weight. 

I 'pon  the  whole,  tho  chancellor  conc«MM->  it  heM  to  con- 
sider the  complainant  as  the  sole  principal   in  the  bond  to 
Dulnni/.  (the  evidence  in  the  cause  showing  that  it   was 
given  on  account  of  bond*  b>  him   passed  without  the  de- 
fendant,)  and  to  charge  the  defendant  with  £'269  6  4,t\\el\<* 
months  after  the  day  of  the  date  of  the  probate  of  the  last 
•will  of  E.  Norwood,  deceased.     It  is  accordingly  ordered, 
that  the  auditor  state  another  account  differing  substan- 
tially from  account  No.  2,  by  him  endorsed  and  filed,  &e. 
And,  on  the  27th  July  1B04,  it  was  further  decreed,  that 
the  injuntlion  should  be  dissolved,  provided  that  no  more 
be  considered  due  or  levied  by  S.  Norwood,  by  his  execu- 
tion on  tile  judgment  at  law  assigned  to  him,  than  the  costs 
at  law,  and  the  sum  of  £278  9  0,  with  interest,  &c.     But 
vhereas  E.  Xorivood,  by  his  petition  this  day,  hath  stated 
on  oath,  what  is  true  to  the  chancellor's  knowledge,  that 
he  hath  a  decree   against  S.  Norwood  for  a  sum   which, 
ivith  the  lawful  interest,  is  superior  to  the  aggregate  sum. 
of  £503  116,  due  to  X.  Norwood  from  E.  Norwood,  it  \*t 
Conformably  to  the  petition,  adjudged,  &c.   that  .V.   Nor- 
wood be  further  enjoined  not  to  proceed  on  his  execution 
at  law  until   the  further  order  of  the  chancellor,  it  being 
reasonable'  that  there  be  a  discount  between   the  parties. 
From  which  decree  the  defendant  appealed  to  this  court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  Tu/.n 
BUCHANAN,  NICHOLSON,  and  GANTT,  J. 

Johnwn,  (Attorney  General,)  T.  Buchanan,  and  / 
per,  for  the  Appellant,  contended,  that  the  complainant 
•ied  up  to  the  relief  prayed  for  in  his  bill,  and  that 
the  general  prayer  for  relief  related  only  to  that  a*k.ed  on 
the  facts  disclosed  in  the  bill.  That  the  allrifatd  and 
probata  must  agree.  That  a  discount  of  the  amount  of 
the  decree  obtained  by  the  complainant  against  the  de- 
fendant, ought  not  to  have  been  allowed  by  the  chancellor, 
n-  it  was  not  claimed  as  a  ground  of  relief  by  the  bill. 
That  there  was  no  allegation  in  the  bill,  of  the  informality 
of  the  assignment  to  the  defendant  of  Duluny's  j 


OF  MARYLAND; 

and  the  defendant's  right  to  claim  under  it  was  not  denied       1807. 
by  the  bill. 

£ey,  for  the  Appellee,  contended,  1.  That  the  appel- 
lant had  no  legal  assignment  ol  Dittany's  judgment  against 
the  appellee,  to  enable  him  to  issue  execution  thereon  in 
his  own  name.  2.  That  the  appellant  was  a  joint  princi- 
pal with  the  appellee,  in  the  bond  to  Dulany,  for  a  valua* 
ble  consideration  paid  to  him;  and  being  a  joint  principal, 
vas  not  entitled  to  an  assignment  of'  the  judgment  against 
the  appellee,  so  as  to  issue  execution  thereon.  3.  That 
the  amount  of  the  decree  by  the  chancellor,  as  well  as  the 
other  sums,  supposing  the  appellant  not  a  co-principal,  are 
properly  discountable,  with  any  other  sujms  he  might  owe 
to  the  appellee.  He  referred  to  the  act  of  1763,  c/i.  23, 
and  insisted  that  the  appellant  must  prove,  1st,  That  he 
yvas  a  surety;  and  2d.  That  he  has  a  regular  and  legal  as- 
signment. That  tli.e  assignment  was  made  by  the  attor- 
ney, and.  not.  by  the  principal  creditor  or  plaintiff  in  the 
judgment,  as  required  by  the,  act  of  X763;  and  that  the 
execution,  issued  in  the  name  of  the,  appellant,  as  assignee 
of  the  plaintiff,  in  the  judgment,  was  not  justified  by  the 
act  under  an  assignment  made  by  the  attorney  of  the  plain- 
tiff, and  in  whioh  it  was  not  stated  that  the  appellant  wa^ 
the  surety. 

CHASE,  Ch.  J.  (a).  The  court  are  of  opinion,  that  the 
decree  of  the  court  of  chancery  be  reversed,  with  costs  to 
the  appellant,  and  that  the  injunction  be  dissolved.  That 
the  clerk  of  this  court  state  an  account  between  the  par- 
ties. The  court  are  of  opinion,  that  the  appellant  was  co- 
principal  and  joint  debtor  in.  the  bond  with  the  appellee  to 
Jtylgnyi  on  the, ground; that  the  specifics,  to  the  amount  of 
.£269  6  4,  were  delivered  and  paid  to  the  appellant  by  the 
appellee,  as  a  consideration  for  the  appellant's  becoming  a 
principal  with  the  appellee  in  that  bond.  Therefore  charge 
the  appellee  with  one  half  of  the  bond,  &c.  £c. 

By  the  statement  made,  as  directed  by  the  court,  a  ba- 
lance remained  due  to  the  appellant,  (after  giving  the  ap- 
pellee credit  for  the  payments  he  had  made  on  the  judg- 
ment, and  the,  amount  of  the  decree  by  him  obtained  against 
the  appellant  on  the  22d  of  February  1803,  and  charging 
him  with  the  appellant's  distributive  share  of  his  father's 
CaJ  Tilghman  and  Gantf,  J, 


CASKS  IN  T1IK  ( orilT  OF  APPEALS 

1808.        estate,  wit  of  ^"313  12  5,  current  m<» 

The  court  therefore  </<crr<(/,  that  the  appellant  be  permit- 
ted to  take  out  execution  airainst  tlie  appellee  on  tin-  judg- 
ment, &.c.  for  the  sum  of  JL3\c<  \t  5,  current  money,  u  itli 
interest  from  the  19th  of  January  1803,  and  the  ci> 
law;  and  that  the  execution  be  sued  out  in  tlie  name  of 
Jttbccca  Dulamji  as  executrix  of  JJaxiilj  for  the  u>e  of  the 
appellant.  DKCHV.I:  ULVKKSKD,  ^c. 


Jfsr,  (E.  S.)  GUXBY  vs.  SI.LBY. 

in  .n  action  of  AppFAL  from  If  orctstei  county  court.  Debt  on  aguar- 
*•!.'»  tondlK't'Ai  tlian's  bond,  dated  in  1797.  At  the  trial,  tlie  plaintiff, (tlie 
n(r'i.r'.»H  by.  appellee.)  offered  a  witness  to  prove  that  the  lands,  the 

,  that  l«nd  ... 

c.nii.  |H»ittnir  w»»  property  of  the  plaintiff,  were,  during tua  minority,  rcntea 

«lur\iiir  hi.  mii»<H-i-    *  ° 

•i  by  u.t  Dy  tj,e  defendant,  fnow  appellant.)  tothe  uitnesg.  in  ir'-l, 

Kuanliut     to    ttic      - 

riHMhVi  I'l-V^ilt'  an^  ^at  l'ie  rcnt  aeri'L>^  ul'on  Between  the  ^itne.-sand  de- 
»»» iLHtr»»rJM. »-  folu|allt  \\a>  le-sciied  in  con^eiiuence  of  an  agreement  be- 
^<",^i,l'lt»-i».-,",i  tween  them,  that  the  viua-ss  ^hould  take  charge  of  the 
lI'iTi'.'r-  tUatihouM  defendant's  stock  upon  the  lands.  The  defendant  object- 
'iIK'ito^k  ed  to  the  admi-Mon  of  such  evidenre,  a,  incompetent.  But 
SEfc*^!?*^*  the  court,  [Polk,  Cli.  J.]  was  of  opiuion,  that  it  was  pro- 
"  per  to  be  given  to  the  jury,  and  to  examine  the  win, 
to  the  said  facts;  and  the  same  was  accordingly  done.  The 
defendant  excepted;  and  the  vet  diet  and  judgment  being 
against  him,  he  appealed  to  this  court. 

The  cause   was  argued  before  TII.GIIMAN,    BUCHANAN, 
and  U\vn,  J.  by 

ll'Iiillinxlun  and  Jfilaoi,  for  the  Appellant,  and  by 
•/  Hayti/,  for  tbe  Appellee. 

JVDCMENT  REVEKSED. 


JuNE,(E.  S.)         EMORY'S  Adm'r.  D.  B.  N.  vs.  THOMPSON 

APPEAL  from  the  General  Court.  The  Appellant  broi.-ht 
!^Trn?ory>U<!lUotiH!  an  action  of  dtht  upon  t'uc  administration  bond  of  E~ 

bwwrtvry   of    the 

otatc  at  UK  deceased,  ecrlHM  nnilrr  <h«-  bind  »m'  ml  i.l  •  I    "   IN  i<>  '•«•  •   trvr  copy 

ttkrn  fTMb  (be   onriiul  a<l<!i:»  nn    un  .  :•      < 

in'),'    •)'>•      i   •'      •    .  -I.!,  r  -;i .  .  .  ii.,;    ;  .  !..   i  .,11:  i..  u  )'t  ,  \  :..i    >r-     n,  iln,-/!.    lli-:u:^ .t,  j(.  .    ,>  .M  ill' 

i. 

An  'inr  <"    IM-  jn  "uii' 

frrrd    b|  Ihr  •.limn  '  a    |  i  r-i  n  « I. 

Ike    »dniii.1< 
luuliil  uti.nti.-  •  ••  •!     ii|i  in   tin-    lint-inn!  <<• 

of  the  ••»!»:«•  gf  the  tfMMMtl— HeJ 

T<.r»i  MUM  vf  OM.IM.)  tptcificd  in  U»c  taij  (wper,  M  part  ot  (be  (uviii  »ud  <.batici>  ul  tLo  AjvCaiW. 


OF  MARYLAND.  245 

,  (who  was  administrator  with  the  will  annexed  of        1808. 
Surah  Emory}  against  the  executrix  of  John  Thompson, 
•who  was  the  security  of  Forman  in  the  said  administration 
bond.  The  defendant  (now  appellee,)  pleaded  performance, 
specially,  and  the  plaintiff  replied  nonpcrformance,  stating 
a  bequest  by  Sarah  Emory  to  the  plaintiff's  intestate,  of 
sundry  parts  of  her  personal  estate,  which  had  been  be 
queathed  to  her  by  her  deceased  husband,  over  and  above 
her  third?;  that  after  paying  the  debts,  &c.  there  remained 
a  residuum  of  £1000  current  money,  &c.     -/fr/oim/cr,  that 
after  paying  debts,  £c.  there  did  not  remain  of  the  estate, 
&c.  any  residue,  but  that  the  whole  estate  was  paid  away' 
in  payments  of  debts,  £c.     Issue  joined. 

1.  At  the  trial  at  September  ternj  1805,  the  plaintiff; 
having  given  in  evidence  a  copy  of  the  inventory  of  certain 
goods  and  chattels  of  Sarah  Emory,  then  ottered  an  official 
copy  of  a  certain  paper,  purporting  to  be  an  additional  in- 
ventory  to  the  inventory  of  her  estate,  and  certified  under 
the  hand  and  seal  of  the  register  of  wills  in  ami  for  Queen- 
Anne's  county,  as  evidence  to  charge  Qzekiel  Form-tin t  in 
his  capacity  of  administrator  of  Sarah  Emory,  with  the 
several  sums  of  money  therein  specified,  as  part  of  the 
chattels,  rights  and  credits,  of  Sarafi  Emory.  The  certi- 
ficate was  thus':  "Additional  inventory  to  the  inventory  of 
Mrs.  Sarah  Emory's  estate,  ottered  by  Ezekiel  Formant 
the  administrator."  [Here  follow  the  articles,  4'C.]  '*•  Ma- 
ryland, Queen  Anne's  county,  to'wit:  I  do  hereby  certify, 
that  the  above  and  foregoing  instrument  of  writing  is  a  true 
and  perfect  copy,  as  copied  from  the  original  additional 
inventory'  of  Sarah  Emory,  ottered  by  Ezekiel  Forman 
administrator,  and  lodged  in  my  office.  In  testimony," 
&c.  Signed  by  the  present  register  the  iQth  of  J-htgiist 
1803.  The  defendant  objected  to  the  certificate,  and  con- 
tended that  the  same  was  not  competent  evidence  in  law 
to  charge  Ezekict  Forman  with  the  amount  of  chattels  and 
credits  therein  mentioned,  as  proposed  by  the  plaintiff,  or 
%vith  any  part  thereof.  And  the  court,  [CAa-se,  Ch.  J.  Done, 
and  Sprigg,  J.]  sustained  the  objection.  The  plaintiff  ex,-* 
cepted. 

2.  The  plaintiff,  having  given  in  evidence  a  copy  of  the 
inventory  of  certain  goods  and  chattels  of  Sarah  Emory, 
then  produced  two  certain  original  papers  iu  writing,  as 


CA>}>  IN  THE  COURT  OP  APPEALS 

1808.         f«.!!nv. ,   t<>  wit:  A.  ''Additional  inventory   to  the  invented 
iv  of  Mr.-.   >W;v.7;  En, cry's  estate,  otlercil  by  Z,'c </,/«/  /i/r- 
iwv/i,  the  administrator."     \_lbre  follow  the  articles.]     B» 
ept  tlie  bonds  due   to  tbe   estate,   tlie  crop   of  wheat 
and  tobacco,  and  the  money  found  in   the  estate,  a  \  arti- 
cular account  of  which  i.-  kxi-»  d  with  the  court  by  the  ad- 
ministrator."    And  the   plaintiff  proved,    by  // 'ilfiiun  If. 
Xichohon,    Esquire,  register    of  wills    for    <{: ••«. -.-inn's 
county,  that  when  applied  to  for  copies   of  original  ppi-in 
in  the  above  cause  in  April  1804,  he  found  the  original  pa- 
pers carefully  wrapped  up  in  the  original  inventory  of  th« 
estate  of  Sarah  Emory,  aud  filed  in  a  bundle  of  other  pa- 
pci •-  belonging  to  his  olljce,  and  he  has  no  recollection  of 
having  seen  this  paper  befpre;  but  he  finds  that  he  gave   a 
certificate  of  the  paper  on  the  2Js-t   of  October    17(.i',>,   lor 
the  plaintiff',   but  has  no   recollection    of  the   situation   in 
which  the  paper  was  in  1799;  but  from  the  manner  in  which 
papers  are  usually  filed  away  in  his  ofi'ae,  he  believes  that 
in  the  year  JT9'J,  the  papei  was  wrapped   up  in  the 
situation  that  he  found  it  in  April  1804;  that  he  was   ap- 
pointed register  of  wills  in  the  year  1796,   and  he  has  no 
knou ledge  of  the  time  or  by  whom   the  above   paper    was 
brought  infy  the  register's  ofiicc,  but  believes,  and  is  firm- 
ly convinced,  that  it  was  lodged  in  the  office  before  !>• 
appointed  register.     Tlie  plaintiff  further  proved,  by  com- 
petent evidence,  that  the  writing  on  the  paper  marked    A, 
•uas  the  hand-writing  of  one  Donald  M'tynnn,   who  atU-4 
\eial  years  as  the  clerk  of  Eztkifl  Funnun;  but  the 
witnf3>,    by  whom   the  hand-writing   of  Donald  JJ'tyuinn 
i  rovod,  detlaicdjihat  he  had   no  knowledge   at    what 
lime  and  at  whose  instance  the  paper  was  made  out,   nor 
lias  he  any  knowledge  of  its  being   lodged  in  the  n-jjvters 
ofiioe  for  f(tnm-. 'June's  county,  and  that  the  words  "addi- 
tional inventory, "endorsed  thereon,  were  the  hand  -writing 
of  J-'.zfhid  t'ormuir,  and  a!*o  that  the  writing  on  the  paper 
marked  li,  wa>  the  hand-writing  of  said  Formirn.  The  phiin- 
1ilV  then  offered  tin-  oiitinal  papers,  so  pioM-d,  asevidenci 
to  charge  Jtzfliirl  J-'ornutn,  in  bis  tap-acity  of  administrator 
of  Sarah  Emory,  with  the  several  sums  of  money  specified 
in  the  paper  marked  A,  as  part  of  the  chattels,   rights  and 
credits,  of  \arah  Emory.      Hut  the  defendant  objected  to 
said  papers,  and  contended  that  the  «ame  were  not  compe 
tout  evidence.     And  tlie  court,  [Chats,  Ch,  J.  Done,  aug 


OF  MARYLAND. 

J.]  were  of  opinion,  that  they  were  not  competent        1  $08. 


evidence  in  law  to  charge  Ezckid  Forman,    as  aforesaid, 

Chaplin 
and  refused  to  permit  them  to  be  given  in  evidence  to  the 

jury.     The  plaintiff  excepted.     Verdict  and  judguient  for 
the  defendant. 

Wright,  Hammond,  and  John  Scott,  for  the  Plaintiff. 
Martin,  (Attorney  General,)    Carmichad,   and   James 
Scott,  for  the  Defendant. 

The  plaintiff  appealed  to  this  court. 

THE  COURT  concurred  with  the  General  Court  in  the 
opinion  expressed  in  the  first  bill  of  exceptions,  but  dis- 
sented from  that  expressed  in  the  second. 

JUDGMENT  REVERSED,  AXD  PROCEDENDO  AWARDED. 


CHAPLIN  vs.  CRUIKSHANKS.  JUNE,  (E.  S.) 

APPEAL  from  Kent  county  court.  The  plaintiff  in  the1  ^^^crtTor^ 
feourt  below,  (now  appellee,)  an  infant  19  years  of  age,  by  ^.["h^Thede". 
his  next  friend,  brought  an  action  of  slander  against  the  ^^^wEtS? 
defendant,  (the  appellant.)  The  first  set  of  words  charg-  u,e  p<c"°fenian"? 

,  .  ..  .   .      ..  ,     .  horse—  Held,    that 

ed  in  the  declaration,  with  the  usual  inuendoes,  were- — the  word*  wen- »* 
<kmy  horse  is  poisoned,  and  will  die,  and  Robert  Cruik-  The  court  re- 

.  .  -fused  to  direct  the 

shanks  had  done  it,  and  that  he  had  furnished  a  certain  ne-  J'»T,  "^t  if  the 

horse     was     a!ivij, 

2*0  Charles  with  oil  of  vitriol,  which  the  said  negro  Charted  the  wor«is  '«i«i  ia 

ilii        decl«tatio« 

had  rubbed  upon  him,  and  that   he  also  believed   that   the  ,w.ere  ."ot  ac'tiona- 

ble,   tlie    same  bi1- 

same  was  premeditated."  The  second  set  of  words,  a^lhf^e'6™1*  to 
charged,  were  the  same  words,  adding,  "and  that  he  be-  „.£!£,,  e"urt(ii«s0* 
liftved  that  he  was  capable  of  such  things,  and  that  he  would  ^  Wonij  ip«k«f 
make  no  secret  of  it,  but  would  tell  it  every  body."  Plea  ff-'SfiSTifi 

„     ,          .1,  i    •  •     •         1  wlncli  tin- plaintiff 

not  guilty,  and  issue  joined.  Wiffi,t  be  indicted, 

tlicy   \vt-i-e  not  ac- 

tir. ii;ib!e,  as  tin-  (!i- 

1.  The  defendant,  at  the  trial,  moved  the  court  to  direct  fmciaiit      mi^ht 

take  Bdrantaee  of 

the  jury,  that  if  they  should  be  of  opinion,  that  the  horse,  k«nam*torju4K 
which  the  defendant  is  alleged  to  have  charged  the  plaintiff 
with  poisoning,  was  still  living,  that  then  the  words  laid  in 
the  declaration  are  not  actionable,  and  of  course  their  ver- 
dict must  be  for  the  defendant.     But    the  court,    [7V/^//- 
man,  Ch.  J.]  was  of  opinion,  that  the  above  was  irrelevant 
to  the  issue,  and  therefore  refused   to  give   any   direction 
fkereon  to  the  jury.     The  defendant  excepted. 


CA>K>  IN    INK  ConiT  OF  APPEALS 

1803.  plaintiff  having  brought  this  action    <»!  s!.i 

a-ain-t  the  defendant,  in  which  lie  alleged  (hat  the  plaintiff 

,  ,     . 

had  poisoned  his  florae,  and  there  beinz  DO  averment  HI  the 
declaration  that  the  hnn»e  w;.-  dead,  the  defendant  moved 
the  court  todiiect  the  jury,  that  if  they  >hould  1)C  of  opi- 
nion, that  the  \\ords  charged  in  the  declaration  to  have 
':cen  >poken  by  the  defend;*!. '.  so  spoken,  yet 

as  it  did  not  amount  to  an  oftence   for    which    tlie  plaitnilV 

i  be  indicted,  the  words  were  not  actionable,  and  of 
course  their  verdict  in  int.  be  lor  the  defendant.  Hut  tha 
court,  [Titghmun,  Ch.  J.]  declined  ufivina;  the  direction  to 
the  jury  on  the  subject,  as  the  defendant  mi^ht  take  ;s 

"f  it  in  arrest  of  judgment,   and  acconlingly  r- 
to  do  so.     The  defendant  excepted.      J'crdicl  for  the  plain* 
tiff, and  dam  :o  '. ^5  current  monev.     M-ttion 

by  the  defendant  in  nrrrst  of  jtclgment  4tfor  that  the  de- 
claration of  tlie  plair.fiiV  is  insufficient,  there  b'-inz  no 
-•ated,  01:  which  the  said  action  can  be  main- 
tained.'' The  co'inly  court  over-ruled  the  UMiion,  and 
rcncK-red  judgment  on  the  verdict  for  the  plaintilf. 

dirtiri  'iti'f  ;ui.l  /V/y/.-y,  for  the  Plaintiff,  and 
Jf  rl^lit  and  Ilmaton^  for  the  Defendant. 

The  Defendant  appealed  to  this  court. 

THK  COURT  concurred  in  the  opinions  given  by  the  court 
lie.iow  in  both   of  the  bills  of  exceptions;  but   reversed  thu 

\  nent,  because  the  Wonls  laid  in  the  declaration 
not  actionable. 

JUDGMKXT 


JCVK,  (F>.  ^.)  M  \RTIN-  and  SMITH  rs.  GU.VBY,  ct  al.  Lessee. 


.  \i.  from  Worcester  county  court.     The    appellee. 
i  he  plaintiff  in   the  court  below,)   brought  an   action   of 
mil  on  a  demise  from    The  I'tifn/  "f  .'III  JIalhnrs 
.'/,  to    wit,  J.'fui  (liinhi/i  &c.  &c.  of  a  tract  of  land 
s    ••/•  //;//,  it  bein^  part  of  lot  No.  0  in  the  town  of 

*"<!,'.  '  .1  '...  '.-'•'  Vnuir  Htll,  in  th-  couniy  of  It'orc^!'  r.      The  defr.nd.iiiK 

T  n>  below   pie,  i  '     '»'//»/,  and  took  general  defence.     At 

«»*»fc»««Jl^lj1^'  the   trial,  the  plaintiff  oflercd   to  read   in  evidence  certain 

ritiic,  in  a  b'r.l.  (tuinorting  to  b",  and  provetl   by  nobcrt 

'{•jndy,  who  vas  formerly  rector  uf  the  vestry,  to  be  hand- 


OF  MARYLAND;  249 

ed  down  to  him  as  the  vestry  book  of  the  parish  of  Ml  1808. 
Hallows,  viz.  "The  proceedings  of  a  vestry  held  at  Snow 
Hill,  to  wit,  the  4th  March  1G94-5.  This  vestry  hath  ap- 
pointed that  the  church  shall  be  built  at  Snow  Hill,  upon 
the  lot  formerly  laid  out  for  that  use,  and  by  reason  that 
the  distance  of  50  or  60  miles  may  not  answer  all 
person's  conveniency  to  attend  from  the  remote  inhabi- 
tants, therefore  it  is  agreed  by  this  vestry  to  have  a  chap- 
pell  of  ease,  the  better  to  answer  the  more  northern  in- 
habitants of  the  sea  side.  It  is  further  agreed  by  this  ves- 
try to  build  a  church  at  Snow  Hill  of  40  feet  long,"  &c. 
*' May  the  5th  1741.  Cap.  James  Martin  moves  to  the 
vestry  of  this  parish,  for  the  liberty  of  building  a  small 
house  on  the  lower  end  of  the  church  lot,  near  the  river 
side,  to  set  up  a  pair  of  scales  in;  and  the  said  Martin  has 
liberty  to  remove  the  said  house  and  scales  off  the  lot 
aforesaid,  when  he  shall  think  so  fit.'"  The  defendant  ob- 
jected to  the  evidence  as  incompetent.  But  the  court 
[Polk,  Clu  J.]  overruled  the  Objection,  being  of  opinion 
that  the  testimony  was  legal,  and  admissible.  The  defen- 
dants excepted.  Verdict  and  judgment  for  the  plaintiff, 
and  the  defendant  appealed  to  this  court 

The  cause  was  argued  at  June  term  1807$  before  CHASE* 
Ch.  J.  TILGHMAN,  NICHOLSON,  and  GANTT,  J.  by 

J.  Bayly  and  Whittinglon,  for  the  Appellant,  and  by 
If'.  B.  Martin,  Dennis  and  JVilson,  for  the  Appellee. 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED. 


HOWARD  vs.  MOALE,  et  aL  Lessee.  JUNE." 

APPEAL  from  the  General  Court.     The  appellee,  on  the    The  death  of on« 

ot    the    Je-sorj    ot 

5th  of  May  1801,  instituted  his  action  of  ejectment  for  a tac?io'nlail01 'j ff'e'"e*£ 

ment,  maybe  tug- 
f»e*tert  after  the  .jury  are  sworn,  and  h'n  heir,  &c  need  not  appear,  or  be  made  a  party 

On  the  question,  whether  or  uot.i  KIMIU  of  laud  from  the  propriemrj  to  "R  M,  and  the  hein  of  hit 
body  lawful!)  begotten^  forever,"  created  an  estate  tail  in  K  M,  and  upon  his  death  without  issue. 
'h€-  rt  version  was  in  tlm  staie  itaudiair  in  the  place  ot  th?  proprietary,  notwithstanding  H  M'$  deed 
bwrini*  the  otatetail.  Held,  thai  mi  interest  in  (he  nature  of  a  trust  estate  tver  was  vested  either  in 
tlie.  proprietary,  or  in  the  state  in  the  place  of  the  proprietary,  no  act  having  been  done  which  could 
create  a  trust  in  either;  and  that  they  could  only  be  considered  as  partie*  having  a  reTenionary  inte- 
rest expocu.it  on  the  determination  of  the  estate  tail 

The  jura  reralia,  as  attached  to  the  person  of  the  kins'  in  England,  nercr  did  attach  to  the  lord 
proprietary  of  Maryland 

The  proprietary  held  the  dominion  of  Maryland,  and  property  of  the  soil,  which  he  could  »ell  ami 
tSispuse  of  in  the  same  manner  as  any  other  person,  and  subject  to  the  «anie  beueficiary.  leral  and 
equitable  rights,  as  in  the  lii.n.l-;  of  any  oilier  person, 

On  au  equitable  interest  being  obtained  i  11  land  agreeably  lo  the  rules  of  the  laud  office,  the  party 
became  entitled  to  a  grant  wuich  he  could  compel  of  the  proprietary 

VOL.  ii.  -32 


CA*ES  IN  THE  COURT  OF  APPEALS 

18()8.         tract  of  l:;tul  called   David's  Fancy,    situate  in  ttrtltimorl 
*— -*-~-J      countv,  into  forty  Bright  separate  parts,  to  be  divided,  nine 

Howard.  •  '  J        * 


IMi 


parts  of  which  were  demised  by  John  A/oo/e,  nine  parts  bjr 


Thererersiiinarv  int. rest  of  the  proprietary,  referred  in  land*  granted  hy  him,  might  H- destroyed 
liy  deed  made  In  i!,--  tenant  in  tail,  under  the  net  ol  June  177J,  rh.  i.  .  -»-ii.t« 

•  i.l  II  v  in. In  .dual 

I  -I  the  |irupneiary'i  reversionary  iir  liy  in:  ititiition  in  hit  phi. 

line-- th.  art  (.1  •  !  rh   23,  w  Hi  ,..;,   t*iit   to  bar  and  extinguish  the  resiiuunarj    interest 

of  th. 

A  icraiit  lor  en  heal  land  will  re'ate  back  to-  <he  original  grant 

A  «uUi  <|u.  in  gripi.  emering  lain!  in  «  hich  the  proprietary  had  a  •.-evenionary  interest,  will  ope- 
rate to  past  such  i,,,.,,,., 

A  grant  nt  Im  .1  .1:  •>.  \.  d  u..<!  r  .1  i  HIM  .inn  warr  ml.  will  not  p  ,^,  |-md  not  then  liaWe  to  escheat, 
but  which  iitlei  wnrdt  became  escheat,  Hiid  a«  such  granted  til  H  third  person.  (Sutr) 

An  etches'  ci  r  il'u-.it.  and  gr.inl  do,  liy  npivaiion  of  law,  relate  In  '  'i-act,and  is  ttriclly 

within  the  principle  and  tuk-  nf  '.aw  of  re!  m  m  l>.  lueen  ri-.ints  und  ci-rtil' 

Win.,   ili    IN  -  t  .n, ,1  si  coml  cm;  so.  i.f  anori~inal  gran.'  i.t  M  tract  nl    l:.nrl  called  D  K,  are  deserib» 
M  ••  "feefiftning    ut .  a    bounded  l..tu-t    tr.-i  .    Irn:-    ilie  N   K  Ixi  indi-d  tree  of  U  I'1,  land,  (called  U 
miming  In  tin- Und  ..('  th ••  »aid  I',  K.  ' •.«  |is   I  •  a  txmnoVd  oak,  th-ir   N  K  150  ps.  (u  a  Ixiiindid 
l«|  oak  ot  the  said    /''•land;  -ind  :hc  first  anil  -  nf  ui\    t-vlirnt   grant    o     ilics-nnc  laiul 

called  O  K,  it  described  at 'Mx-ginning  at  s»  !ocn-t  m>»  Ix'iindi  <f  at    or    sery  mai  tn   the    p'act-    where 
atnod  a  '  .  .inn.:  ir.  i- of  D  K,  and  a  bounded    tree  of  ;i  tract  nf  land. 

Called  I"  C.  firmrrl-  f  i-ennini;  lh   in-.    \>  nil  Ilie  s:iiil   land    \'.  r'S   |,s.    (i(  b«  ing    ex- 

fHeued  in  the  eer'ificate  n f  thu  original  iurfej    in  ,  ,in  In  i  In-  land  of  tin-  said  1'.  K  d.s  |>,.  in    u  h.,iinJ. 
rd  o»k.  \  .n   itill  Imnndini;  nit  thetaid  hunt,  to  ih'-  N  W  branch 

«>f  Patapieo   '.  ,  tie  r.-in  i  \pn^-<  •!  ii>  run  N  E  1.^0  p».  to  a   l.nuinled    rnl    oi.1%    nt    tin    vinl 

ft  land,  and   <  .-n-nti  .nine  to  nin  t;  H  Ixi I.  d    red  oak 

rlandiin;  by  .'  \V  l<raiu-h,  which    o  ik  i%  m>i  knn»  it.")     Hrlil,    thut    linn-   - 

don'it  or  aAbinity.  and  that  if  t'u-  II-^I.IUK'  nf  D  '<•'  i>  rightly  located  on  the  plut<  at  the  termination 
of  the  tw.  !lih  iinr'i.i  .  in     .,!  ih.    .  \ntence  of  nn\    ti..     ..,    i:illid  fur  at  the 

:    thi-  f.iM   line  of        1,  tin  n    the  cxpriMinin  in  the  .'client  g'ai.t  J.)  t-iiid    llrit  grant    to 
the  true  inc'i'ion  of  the  ori)cinul    ti..i'  i  alii  (1  1)  K,  us  In  (he  two  firtt  lino  tin -n-n I,  M.  i.ir  :i\  'I. 
line  of  Ihe  oricmal  did  actually  fVend;  ..i.-l  ili:.i  ilu  li   st  a<nl  seooii-l  lines  ol  the    o  1:71  ual     i 
bv  rinuc  of  the  fxnr»liuu*  lliervili  uxd,  bind  thuse  iiin-.i.n    the  thiiUeiilh  and  fou.  u-i  tub  linet  ut" 

V  hrre  the  plaintiff1  hat  not  located  hit  nche.it  grant  on  the  pl-t<  in  the  enn;e  co-exti  inive  with  the 
location  ol  the  nnguyjl  i-u",  he  -aninit  cive  ev  nle in.-  to  •  \fi-i  d  Irs  |<n-tfiisiiiii<  br \on.l  the  linet  and 
linn'it  lie  hi.  hot  i;mnt;  but  In-  is  est  ipp.  d  'i\  that  l.><-ation  froin  idling  b-joni!  the  let- 

ter  V,  located  on  Ilie  p  nt~,  Irnm  u  hence  In    nni-t   run  tis  (In    head  o*  lltni-nrit  *  llrnnch,  at    «!:. 
point  the  same  may  lie  a-;re-  a'olj   (o  hit  Incatiuu  of  In-  ptx-Cen-.ioni,  and  tin-  location  b)  which  the  nV- 
Tendant  hn.  l.ik.  u  il 

The  plamtifT  cannot  give  any  evidence  of  the  'ines  of  hit  escheat  grant,  running  otherwise  than 
be  hat  located  them  «*!»  the  plots  in  the  cause  us  hi,  pretensions;  Silt  hs-  is-  not  p'ee.iidi  .1  fro  in  giuni: 
«••  nl'ineol  any  other  lines,  at  the  lines  ol  the  original  tract,  by  wa\  of  illustration;  »in!  he  nm\  uip- 
ji"H  the  location  of  hn  |ireleutitnis,  to  fur  as  lit  can  slluw  tlnu.  they  urv  locnU-d  \\iihin  the  luuiti  of 
the  niiginal  tiact 

>  n.-i  ihe  pUce  svln-re  the  ti  mini  line  nf  a  tr«(  t  ol  l.nnl    d  rininated.    the  third    line    thereof,  ^i7. 
'•  1  hs  n  N  N  \V  ff>  ps    (•  a  buin.ded  red  ojik,  then."  fctc.  mini  run  tin    nninli.  r  ol  perctn  «  expii  -«•  d  in 
•  he   grunt,  and  cannot  in  it*  length  be  increased    or  dinnuulicd,  unk>,  proof  is  made  of  the  tree  caIV» 
r  the  plac-  \>ln  ..    il 

So  the  fourth  line.  M/  "  fin  n  s  V."  to  the  head  of  [Dmarft  Brnncn,  then,"  l«;c.  mint  rdn  a  itr&igbt 
line  to  the  bead  of  Hncnnri  Krnnch 

i  natc  plot  ol  the  liu.J.  n.  di  pule,  perinittci',    under  certain  circumstance*,   to  be  read  in  e»i- 

I  hr  cotine  ^nd  diitnnre  expressed  in  »  grant  -if  'and,  must  alwnjs  be  cnn'roled  by  a  call  expretted 

:n  Ihe  t.  in.ii  a  ii.n  i.l  i  hi    i    n.s.  :  und  the  f .  lowing  eouise  and  dillanec  ttaed  ID  the  L  i:.n',  \ir. 

'I  ps.  lo  a  iniall  branch  which  inaketh  the  oiru.iril  n  irin»»  of  tli.-  said    laud,"    niiitl    In-   com- 

p'icd  stith,  as  nearly  at  they  can.  to  strike  iln-    n- ..'nib  .le-ci  it;.-il,  a,  u  i  \i,ied    at  th-- time    of  the  »ur- 

«t\.  iiilijict  to  (In- variation  of  the  compast  on  thai  line 

'Ihe  i  dnect  tin- jury,  that  IK--  «•    ..ml  line  of  a  tract   of  land,    vi/.-   "  I  ln-n    N  K  150 

pt.  u>  a  bounded  led  <nk  of  (In- wnl  '\  l.init,"  (ivein^  ihi-  lourti '•nth    line   iif-.li.it    hind,   which    in-e 
U-ing  lnit,-ihe  place  win-re  it  »tiKid  t'.iild  n..t  I  ,    pr.s'-i!.;  in.i^t  terminate  ..fi.Wpi    IVunv 

ili-    li'irinniaw  fill  ll  nl    it  bemr  a  mit'i  r  nf  f.\:  (  t  .  '•     i-  .1  tn  t'n-  il 

. 

«nt>Dal  gr..i  I, 
partir  -i 

it    ;  ant  did  al- 
tu  in<" 

A  di  nosi  inn  taken  on  t!  •  of  tbo 

tnal,  wu  pn  milted  to  be  read  in  cvidenct,  due  dibgeiiiv  having  bcvii  uted  lo  obuu>  the   n-.i. 

!    thr-  jury,  tli. i  ,:nl  t'n-  run-  locali'in  ol   I)  K,  liir  which  the  rjectm--nt 

•  xpp.  sir  Inlh   n,   |,i..pi  r    fi-iini  ibc 
i  In-    p-uintitra 

5  KIM  nl.   mi  thr  plon.or   Ut'j  ond  J  straight  line   (u   be 

. 

•   i  r  nti)  Hud  «lnch  'hmi '. 
'I  Key,.ii.|  as.  ',,    iTr.iwn  Irnm  th.   lelli  r  V,  m  ih.   I,,  „  l  *(Hinrnr>ri  H> 

Ih  .1  m.illll.  r.,   alll|.,.|,-h   ll,.,,e   I  in.h  ,h I     lie  M 

•  •  |i  elm.  nt  i,  brought,   ..nil  ill  to  within    the  line,  of  III 

tiff*    )-: 

ntiff  it  (ttii|>)>cd  fi-nm  «lio\ving  thr  true  i 

!.)      I I'.r   hn  pn 

^  at  lu  prvtCUl  him  Iruni  itvurvutig  t,%||at  il  guntaiuid  in  !)!•  pfvtiUMVtt)    within   "k 


OF  MARYLAND. 

Richard  //.  l\foa!c,  nine  parts  by  Robert  North  Moale,  nine  1808. 
parts  by  Samuel  Djoale,  nine  parts  by  Handle  Ilulse  Monle, 
one  part  by  Thomas  Moale,  one  part  by  Richard  Curson^ 
Junior,  and  one  other  part  by  Rebecca  Russell.  The  de- 
fendant, (now  appellant,)  pleaded  not  guilty.^  and  took  de- 
fence on  the  plots  made  and  returned  in  the  cause. 

The  plaintift;  at  the  trial  court,  in  May  1804,    made  his 
claim  and  pretensions  for  a  tract  of  land    called    David's 
Fancy i  resurveyed  tor  John  Moale,  on  the  1st  day  of  No- 
vember 1758,  as  the  same  is  located  by  him,  the  plaintift* 
upon  the  plots  returned  in  the  cause,  as  per  table  of  courses 
No.  2,  viz.  From  the  letter  d,  (1)  N.  862,  E.  65  perches, 
(2)  N.  41|,  E.  235  perches  to  b,  (3)  N.  25|,  W.  86  perch- 
es  to  V,  (4)  N.  86,   W.  112^  perches  to  F,  (5)  S.  51,  W. 
14,  (6)  S.  24,  W.  5,  (7)  S.  G7,  W,  12,  (8)  S.  10|  W.  40, 
(9)  S.  70,  W.  4,  (10)  S.  47,  W.  G,  (11)  S.  3.6i,  \V.  16., 
(12)  S.  54,  W.  21,  (13)  S.  75,  W,  8,  (14)  S.  18d  W.  14, 
(15)  S.  71,  W.  14,  (16)  S.  35,  W.  14,  (17)  S.  89,  W.  10, 
(18)  S.  28,  W.  14,  (19)  S.  8,  W.  18,  (2Q)  S.  10£,  E.  18, 
(21)  S.  65,  E.  18,  (22)  S.  144%  E.  38,  (23)  S.  4Q£,  E.  23, 
(24)  S.  7,  W.  31,  (25)  thence  to  the  beginning,  containing 
257- acres.     The  defendant  took  defence  for  all  that  part 
of  Lun's  Lot,  granted  to  Edipan{  Zim.on  the  20th  of  July 
1673,  beginning  at  red  A  on  the.  plots,  and  running  with, 
the  black  drawn  lines,  red  figures  1,  2,  3,  4,  5,  6,  7,  8,  9, 
then  with  the   blue  shaded   line  to  P,  then  with  the  black 
drawn  line  to  4,  then  with.  the.  red  broken  dotted. line  to  Vt 
then  to  red  1,  then  with  the  black  lines,  black  figures  19, 
20,  red  figures  14,  15,  16,  1.7,  18,  19,  and  then  to  red  Jlt 
as  per  table  of  courses  No.  26.     Judgment  was  entere4 
against  the  casual  ejector  for  the  land  called  David's  Fan? 
cy,  undefended  on  the  plots  by  the  defendant.     After  the 
jury  were  sworn  by  the  issue,  the  plaintift",  by  his  attorneys, 
suggested,  that   since  the  demises  in  the  declaration,  and 
the  institution  of  this  suit,  and  before  then,  &c.  to  wit,  on, 
&c.  Richard  II.  Moale,  one  of  the  lessors  in  the  declarer 

tion,  the  defendant  is  also  estopped  from  saying  that. the  true  location  is  different  from   the   location 
given  by  the  plaiutifV 


extent  ol  UK  sum  location.;  to  ue  from  A  to  a,  to  r,  to  lour  pti-cnes  i  *  aig  r,  uie  nean  i>i  tiouara't 
Branch,  and  then  to  J,  anil  tlint  the  diTcmhmt  was  guilty  qt' ihe  trt  •.;•;!«;  complained  ofwilhui  the 
said  pr>-tension«,  and  not  guilty  as  to  the  residue  ot  'the  trespass  complained  of  iu  Ihe  residue  of  tho 
land.  Hel/l,  that  there  was  no  uncertainty  in  the  verdict 

A  mortcajje  of  lands  to  a  British  subjeot  before  the  revolution,  was  not  thereafter  defeated  by  thft 
act  ol  Ciiunica!ioii,biit  it  win  protected  uy  (lie  Britith  treaty,  and  the  mortgage  property  was  ftc- 
Cftx*  to  be  >uld  to  [i ay  the  mwrtgii^e  debt.  (K<,:tJ.J 


CAM->   IN  THE  COVHT  <>i  M... 

1808.         tion  mentioned,  who  demised   nine  pans  of  the  prom: 

(in    forty-eight  parts  to   be    divided,)  to  the  plaintiff,    had 
died,  and  which  was  not  denied. 

1.  The  first  bill  of  r. ret pt ions.  The  plaintiff,  to  make 
title  to  the  tract  called  Dnnd's  Fancy,  read  in  eudence 
a  certificate  of  survey  of  David' a  I-'inin/  made  for  David 
IVilliam*  on  the  C'Jd  of  June  H>71.  and  containing  100 
acres,  which  certificate  recites,  that  by  virtue  of  a  \\; 
granted  unto  Robert  Jf'ilson  for  650  acres,  bearing  date  tlic 
ITth  of  June  1671,  100  acres  thereof  was  I  unto 

David  U'UliamSi  by  11  ihon,  there  was,  therefore,  laid  out 
for  ff'tli'iams  »'a  parcel  of  land  called  Davul's  Fining  ] ying 
in  Bultimort  county,  on  the  N.  side  of  Patapaco  river,  and 
on  a  branch  called  the  Middle  Branch,  beginning  at  a 
bounded  locust  tree,  being  the  N.  E.  bounded  tree  of  Da- 
ri</  Poolers  land  (a),  and  running  by  the  land  of  the  said 
1'oolc  E.  65  perches,  to  a  bounded  oak,  then  N.  K.  l.~>0 
perches  to  a  bounded  red  oak  of  the  said  Poole's  land,  then 
>".  N".  W.  86  perches  to  a  bounded  red  oak,  then  S.  \V. 
to  the  head  of  Ifotrard's  Branch,  then  bounding  on  the 
said  branch,  and  the  said  Middle  Branch,  to  the  first  bound- 
ed tree,  containing  and  laid  out  for  100  acres  more  or 
The  plaintiff  also  offered  in  evidence  a  patent  for  the  land 
called  David1  s  Fancy,  granted  to  If'iHimns  on  the  1st  of 
May  1672.  The  courses,  &c.  in  the  patent  correspondii.g 
vith  those  in  the  certificate,  except  in  the  patent  the  6'.  ft'. 
course,  last  above  mentioned,  is  described  to  run  %>S.  AN". 
and  by  W.  to  the  head  of  Howard's  Branch,*'  &c.  He 
also  offered  evidence,  that  tt'illiuins  departed  tliis  life,  in- 
c,  and  without  heirs.  He  also  produced  and  read  to 
the  jury,  a  warrant  of  escheat  issued  to  John  Aluale,  set- 
ting forth  that  there  was  escheat  to  the  Lord  Proprietary, 
a  tract  of  land  called  David's  Ftinry,  hing  in  /iallimorc 
county,  on  the  W.  side  of  the  Middle  Branch,  originally 
granted  on  the  1st  of  May  Iti7-,  t<»  Dur'u!  Hitlia/ 

That  on  the  ];>th  of  Maich  17'I%a  certaiu 
Tlioinas  Cromirilf,  by  his  petition,  setting  forth  that  he 
was  seized  in  fee  thereof,  obtained  a  special  warrant  to  re- 
survey  it,  and  a  certificate  thereof  was  returned,  by  which 
it  appeared  that  there  were  83  acres  of  surplus  land  in- 
cluded, for  which  Cromwell  never  compounded  nor  «ued 
out  grant  of  confirmation  thereon,  contrary  to  (sundry 
C°J  Called  "Upton  Court." 


OF  MARYLAND.  258 

of  his  Lordship's  proclamations  for  that  purpose  publish-  1R08. 
«d.  That  apprehending  his  Lordship's  rights  had  not  been 
complied  with,  Mua/c,  on  the  14th  of  April  1737,  obtained 
a  special  warrant  to  resurvey  the  said  tract  in  order  to 
have  the  benefit  of  the  surplus,  and  the  contiguous  vacan- 
cy, if  any.  That  since,  upon  the  strict  search  made  both 
in  the  records  of  the  provincial  court  and  county  court  of 
the  county  where  the  land  lay,  as  also  in  the  records  of 
the  commissary's  office,  he  could  not  find  any  conveyance 
from  Jf'illiums  to  one  John  Athrine,  who  had  pretended  a 
right  to  the  land,  nor  to  any  other  person,  nor  that  ever  he 
•willed  ths  same  to  any  person  whatsoever;  by  which  means, 
Moale  was  advised  that  the  land  had  become  escheat  to 
his  Lordship;  and  he,  being  the  first  discoverer,  and  de- 
sirous to  purchase  his  Lordship's  right  thereof,  be  it  es- 
cheat by  the  means  aforesaid,  or  by  any  other  ways  or 
means  whatsoever,  prayed  a  special  warrant  to  resurvey 
the  same,  &c.  which  was  granted,  &c.  and  the  surveyor 
was  directed  carefully  to  resurvey,  for  and  in  the  name  of, 
Moale,  the  tract  of  escheat  land  called  DavuPs  Fancy,  ac- 
cording to  its  ancient  metes  and  bounds,  with  its  surplus- 
age, and  by  his  outlines  adding  what  vacant  land  he  could 
find  to  the  same  contiguous,  whether  cultivated  or  other- 
wise, not  running  his  lines,  &c.  He  also  offered  evidence, 
that  the  warrant,  not  having  been  executed  in  time,  was, 
on  the  17th  of  May  1738,  renewed  for  six  months  longer. 
That  in  virtue  of  the  last  mentioned  warrant,  a  certificate 
of  survey  was  returned,  dated  the  1st  of  November  1738, 
by  which  it  appears,  that  there  was  resurveyed  for  and  in 
the  name  of  Moale,  the  tract  of  land  called  David's  Fancy, 
with  its  surplusage,  according  to  the  ancient  metes  and 
bounds  thereof,  as  shown  to  tjie  surveyor,  lying  in  the 
county  aforesaid,  on  the  E,  side  of  the  middle  branch  of 
Palapsco  river,  beginning  at  a  locust  now  bounded  at  or  very 
near  to  the  place  where  stood  a  bounded  locust,  the  origi- 
nal beginning  tree  of  DaviiPs  Fancy,  and  a  bounded  tree 
of  a  tract  of  land  called  Upton  Court^  formerly  laid  out  for 
David  Poole,  and  running  thence,  with  the  said  land,  E. 
65  perches,  (it  being  expressed  in  the  certificate  of  the  ori- 
ginal survey  to  run  by  the  land  of  the  said  Poole,  E.  Go 
perches  to  a  bounded  oak,  which  cannot  be  found,)  thence 
N.  E.  238  perches,  still  bounding  on  the  said  land  to  the 
N.  W.  branch  of  Patapsco  river,  it  being  therein  express- 


CASES  IN  THE  COURT  OP  APPEAL- 
ISO?,        ed,  to  run  N.  E.  150  perches  to  a  bounded  red  oak  of  the 

/'niilt'a  land,  and  the  certificate  of  the  said  Poolers 
land  mentioning  to  run  that  course  to  a  bounded  red  oak* 
standing  by  the  side  of  the  said  N.  "NV.  branch,  which  oak 
is  not  known,  thence  N.  N.  \V.  86  perches,  b.  83°  30' 
AN*.  133  perches,  to  the  head  of  Howard's  Branch,  it  be- 
ing expressed  to  run  S.  "U.  to  the  head  of  Howard's  Brunch, 
thence  bounding  on  the  said  branch,  and  the  aforesaid  Middle 
"Branch,  to  the  first  bounded  tree,  as  mentioned  in  the  cer- 
tificate of  the  original  survey,  as  follows,  viz.  S.  by  W,  16 
ps.  S.  -41,  E.  16  ps.  N.  83,  AY*.  24  ps.  S.  AN*.  -JO  ps.  N. 
73,  AV.  10  ps.  S.  22,  A\  .  -24  ps.  AN  .  9  ps.  S.  SO,  AV.  »2 
ps.  N.  7-4.  AV.  10  ps.  still  bounding  on  Howard's  Branch 
to  the  Middle  Branch,  thence  S.  38,  AV.  16  ps.  S.  11,  AV. 
15  ps.  S.  2,  E.  12  ps.  S.  12,  K.  12  ps.  S.  70,  E.  12  ps.  S. 
1  :.  I..  38  ps.  S.  37,  E.  28  ps.  still  bounding  on  the  Mid- 
dle Branch,  and  thence  by  a  straight  line,  bounding  on  the 
branch,  to  the  bt  »  ontaining  and  laid  out  for  257" 

acres  more  or  k-^,  to  be  held,"  &c.  "by  the  name  of  D«i- 
rid's  Fancy.'''     He  also  read  in  evidence  the  grant  issued 
thereon  to  Richard  A/oale,  dated  the    £'.)th  of  .September 
J750,  which  grant  recites,  that  Charles  Croxull,  (guardian 
and   next  friend  to  Richard  Moule,  an   infant,  under  the 
age  of  twenty-one  years,)  did  set  forth,  that  a  certain  John 
jl/ofl/f,    deceased,    father   to  Jtichanl,  did   heretofore   s^t 
forth  that   there  \\a.i  escheat,  &x.  (as  in  the  recital  in  tta 
special  warrant  granted  to  Juhn  A/cw/f,)  that  a  warrant  i-- 
sued,  was  renewed,  and  a  resurvey  made,  and  certificate 
thereof  returned,  by  which  it  appeared,  &c.     That  before 
JohnMoalc  obtained  a  grant  of  confirmation  for  the  same, 
he  died,  but  before  bia  death  he  made  his  last  will  a.  il 
tament,  in   which  was  the  following  bequest:  "Item.     I 
:/i\r  arid  bequeath  unto  my  infant  son,  to  be  christened  by 
the  name  of  Richard,  all  that  tract  of  land   I   bought  of 
Jacob  Giles,   named   I'jilon  ('uurt,  and  also  the  land  ad- 
joining thereto,  which  I  escheated  and  paid  his  Lordship's 
agent  for,  as  per  the  receipt  on  the  back  of  the  certificate 
now  in   the  office,  the  patent  not  yt   bcini:  issued  out,  to 
him  my  said  beloved  infant  son,  and  ho  l.eiin  lawfully  be- 
gotten, from  him  ami  their  bodies,   for  evenm-re;  but  if 
either  of  my  aforesaid   sons  >hould  die  without  such  hcirt 
-aid,  then   it    is  my  will,  that  the   laud  which   I  have 

dr\Urd  the  dead   son,  heir  less,  shall  go  to   the  lir 
ing  son,  to  be  held  of  him,  and  his  lawful  Lcirs,  from  ge- 


01?  MARYLAK&1  s 

neration  to  generation  as  aforesaid."  Croxalt,  therefore,  1808. 
prayed,  that  for  as  much  as  the  right  of  the  escheat  land 
was  in  Richard  Moale,  and  all  requisites  complied  with, 
grant  of  confirmation  might  issue  to  him  on  the  certificate, 
agreeably  to  the  bequest  aforesaid,  &.c.  Therefore,  irt 
consideration  thereof,  arid  other  the  premises,  &c.  thft 
"  Lord  proprietary  did  give,  grant  and  confirm,  unto  him, 
"  the  said  Richard  Moale,  and  the  heirs  of  his  body  lawful- 
"  ly  begotten,  for  ever,  agreeably  to  the  bequest  aforesaid^ 
•'*  all  that  the  aforesaid  tract  or  parcel  of  escheat  land  re- 
**  surveyed,  and  still  called  David's  Fancy  lying,"  &c.  as 
described  in  the  certificate  herein  before  mentioned — 'kTo 
"  have  and  hold  the  same  unto  him  the  said  Richard  Mo  ale  t 
'*  and  the  heirs  of  his  body  lawfully  begotten,  for  ever;  to  be 
"  holden,  of'&c.  He  also  read  in  evidence  the  last  will  and 
testament  of  John  Mdale,  for  whom  the  certificate  of  survey 
was  made  and  returned,  dated  the  14th  of  January  1739-40. 
"Whereby  he  devised  to  his  son  John,  to  him  and  his  heirs  law- 
fully begotten  from  his  and  their  bodies,  for  ever  more,  sundry 
parcels  of  land;  and  he  also  devised  to  his  infant  son,  to  be 
christened  by  the  name  of  Richard,  the  lands  mentioned 
in,  and  in  the  manner  set  forth  in  the  grant  last  before 
mentioned.  He  also  read  in  evidence  a  deed  of  indenture 
dated  the  llth  of  April  1783,  from  Richard  Mode,  to 
James  Croxall,  reciting  that  Moale  was  seized  of  an  es- 
tate, in  fee  tail,  in  and  of  a  tract  of  land  called  David's 
Fancy,  (saving  and  excepting  that  part  thereof  before  con- 
veyed by  him  to  Mary  Tribolet^)  lying,  &c.  and  it  was  the 
intent,  meaning  and  design  of  Moale,  according  to  the  act 
of  assembly,  &c.  fully  and  effectually  to  bar,  dock  and  de- 
stroy the  entail,  and  to  grant,  convey  and  transfer  to  Crox- 
all,  and  his  heirs,  absolutely  and  fully,  the  said  tract  of  land, 
(saving  and  excepting  as  aforesaid,)  with  the  appurtenances 
thereunto  belonging,  in  order,  and  with  the  intent,  and  for 
the  purpose,  that  Croxall,  on  his  becoming  thereby  s-eized 
thereof  in  fee  simple,  might  reconvey  and  assure  unto 
Moalc,  and  his  heirs,  the  tract  of  land,  &c.  in  consequence 
and  on  the  operation  whereof,  Moale  might  be  and  stand 
seized  of,  and  be  entitled  unto,  the  premises,  fully  and 
absolutely,  in  fee  simple.  The  indenture,  therefore,  wit- 
nessed, that  Moale,  in  consideration  of  the  premises,  and 
also  for  and  in  consideration  of  the  sum  of  five  shillings, 
&.c.  granted,  &c.  unto  Croxall,  the  tract  of  land,  (saving 


CASKS  IN  THE  COURT  OF  APPEALS 

1808.        and  excepting  as  afon-saul.)  in  the  usual    form.     He   also 
*-—>— -J      re*d  in  evidence  a  deed  of  indenture,   dated   the   12th  of 

•  •    ___  _j 

April  17H3,  from  James  Croxall  to  Richnrd  Ajoulc,  for  thr 
tract  called  Dai-itl's  Fancy,  exo-pting  that  part  *old  by 
Moult  to  Man/  Tribokt(n).  He  al.*o  olferrd  in  evidence, 
that  Richard  Aloale  died  sometime  in  the  year  1786.  with- 
out issue  of  his  body  lawfully  begotten,  having  iii-t  duly 
made  and  executed  his  last  will  and  testament  in  writing, 
Jated  the  22  d  of  February  1780,  whereby  he  de\ised  all 
that  part  of  the  tract  of  land  called  David's  Fancy,  for 
which  this  suit  is  brought,  to  his  brother  John  Moalc,  in 
fee  simple.  That  John  Mode,  the  devisor  first  named, 
left,  at  the  time  of  his  death,  two  sons,  to  wit,  John  Moalf} 
his  eldest  son  and  heir  at  law,  and  Hi  chard  Monk,  the  pa- 
tentee before  named.  That  John  Aloale,  the  devi-oi- l,i«t 
named,  died  in  the  year  17P7,  having  first  duly  made  his 
last  will  and  testament,  dated  the  20th  of  July  17'J7, 
YI hereby  he  devised  all  that  part  of  Daviti's  Fancy,  for 
•which  this  suit  is  brought,  to  his  sons7o/w  Jfoalc.  Mil-hard 
Moale,  Robert  North  Afnalc,  San.'«l  Moule,  Gears.'*-  ffrtuh- 
mgton  AJoa/e,  and  Ranille  Hulse.  fljoalc,  their  heirs  and  as- 
signs, to  be  equally  divided  between  them,  shrae  and  share 
alike,  as  tenants  in  common.  lie  also  gave  in  evidence, 
that  George  Washington  Moale,  the  devisee  mentioned  in 
the  last  mentioned  will  of  John  Moalt  the  younger,  died 
after  his  father  John  Moale%  in  the  year  1797,  intes- 
unmarried,  and  without  a  child.  That  the  lessors  ol 
plaintiff,  to  wit,  John  Moale,  Richard  //.  Rtoale,  Robert 
North  .)fo<dc,  Sanutd  Moalc,  Randlr.  JInhr.  Moalc,  77i0- 
mas  Afortle,  Rebecca  Russell,  and  Elizabeth,  wife  to  Rich- 
ard Curson,  in  the  declaration  mentioned,  are  the  children 
and  the  only  children,  of  John  Aloale,  the  last  nam«-d  d.-- 

;  that  Richard  Moulc,  one  of  the  lessors  of  the  plain- 
tiff, died  since  the  brin^in^  if  t'ui-  <uit,  andduring  the  pi-n- 
dency  thereof,  leaving  issue  now  in  full  life.  He  a!-. 

1  evidence,  that  the  true  location  of  the  land  called 
David'*  Fancy,  granted  to  David  It'illiamam  1G72,  is,  as 
he  hath  located  the  same  upon  the  plots  returned  in  this 

fa}  The  defendant's  attornics.  at  this  stapc  of  the  trial,    made 
their  objections  to  the  print  t<  but   as  the    bill   of 

exceptions  conUunol  the  whole  evidence  of  title  adduced  by  the 
parties,  we  have  adopted  the  mode  pursued  in  the  bill  of  excep- 
tions. 


'OF  MA&YLAND. 

cause;  and  also  that  the  true  location  of  the  land  called  1808. 
David's  Fancy,  granted  to  ftichard  Moale  in  1750,  for  the 
recovery  of  which  this  suit  is  brought,  is  the  same  as  that 
of  David's  fancy,  the  original,  granted  to  David  Williams 
in  1672,  as  located  by  the  plaintiff  on  the  said  plots.  The 
defendant  then  read  in  evidence  the  certificate  of  survey, 
dated  the  10th  of  October  1672,  and  grant  of  Lun's  Lott, 
to  Edward  Lun,  bearing  date  on  the  20th  of  July  1 673, 
\vherebyitappearsthatthere  was  surveyed  "a  parcel  of 
land  lying  in  Baltimore  county,  on  the  N  side  of  Palapsco 
river,  and  on  a  branch  called  the  N  W  Branch,  called 
Lun's  Lott,  beginning  at  a  bounded  hickory  standing  on 
the  W  side  of  the  falls  of  the  N  W  branch,  and  in  the 
line  of  the  land  of  Thomas  Perte  and  Robert  Benjor,  call- 
ed Salisbury  Plaine,  and  running  with  the  line  of  the  said 
land  N  W  and  by  N  38  ps.  to  a  bounded  Jrickory  in  the 
line  of  the  said  land,  then  S  W  165  ps.  to  a  bounded  red 
oak,  then  S  40  ps.  then  W  N  W  45  ps.  to  a  bounded  hick- 
ory by  the  head  of  a  branch,  then  S  125  ps.  to  A.  bounded 
red  oak,  then  W  and  by  S  20  ps.  then  S  and  by  E  40  pa. 
then  S  E  80  ps.  to  a  bounded  Spanish  oak,  then  S  60  ps. 
to  a  bounded  white  oak  in  the  land  of  John  Howard,  called 
Timber  Neck,  then  by  the  said  land  E  S  E  74  ps.  to  a 
bounded  white  oak  of  the  said  Howard's  land,  then  S  E 
120  ps.  to  a  bounded  red  oak  standing  in  a  bite  of  the  N 
W  branch,  then  bounding  on  the  said  branch  lying  up  N 
50  ps.  to  a  bounded  red  oak,  thenN  N  W  38  ps.  then  W 
N  W  100  ps.  then  N  and  by  W  50  ps.  to  a  locust  marked 
with  four  notches,  then  N  N  E  45  ps.  to  a  bounded  icd 
oak  in  the  line  of  the  land  of  Thomas  Cole,  then  \V  75 
ps.  to  a  bounded  oak  of  the  said  Cole's  land,  then  by 
the  said  land  N  N  E  275  pa.  to  another  bounded  oak,  then 
E  05  ps.  to  the  falls,  then  bounding  on  the  said  falls  to  the 
first  bounded  tree,  containing  200  acres,  more  or  less,"&c. 
He  also  read  in  evidence  the  certificate  of  survey*  dated 
the  8th  of  April  1 762,  and  grant  of  Lun's  Lott  Enlarged* 
dated  the  25th  of  March  1763,  surveyed  for  and  granted 
to  Cornelius  Howard,  and  Ititfh  his  wife,  and  containing 
414  acres,  more  or  less,  being  in  virtue  of  a  special  war- 
rant to  resurvey  a  tract  of  land  called  Lun's  Loft;  and 
also  proved,  that  Lun's  Lott  and  Lun's  Lott  Enlarged,  are 
truly  located  on  the  plots  returned  in  this  cause.  He  also 
offered  evidence  to  prove,  that  he  is  heir  at  law  to  Edward 
VOL.  n.  33 


CASES  IN  THE  COURT  OF  APPEALS 

Lun,  the  patentee  of  Lwfi  Lott,  and  also  the  heir  at  latf 
of  Cornelius  Howard,  and  7?«//i  lii?.  wife,  the  patent' 
Luii's  Lott  Enlarged.  The  defendant  then  prayed  the 
opinion  of  the  court,  and  their  direction  to  the  jury,  that 
the  plaintiff,  upon  the  above  statement  of  facts,  hath  not 
tnade  title  to  the  lands  for  which  the  defendant  hath  taken 
defence  in  this  causej  nor  any  part  thereof,  and  cannot  re- 
cover in  this  action. 

Pidgely,  for  the  Defendant,  contended,  that  the  grant 
to  Richard  Moale  of  the  29th  of  September  1750,  for  fia- 
viirs  Fancy,  vested  in  him  an  estate  tail,  and  that  upon 
his  death,  without  issue,  the  reversiori  is  in  the  state  of 
Maryland,  standing  in  the  place1  of  the  proprietary;  and 
that  the  deed  from  Moale  to  Croxall  had  not  the  effect  to 
bar  the  estate  tail.  He  cited  the  act  of  assembly  of  Nov. 
1782,  c/i.  23.  Pigott,  85,  S7,  88,  89.  Neal  vs.  WiltUnsr, 
1  mis.  275.  Pool  vs.  Neilhar.i,  }',lr.  149.  Anon.  Ai»//, 
132.  18  Jin.  Mr.  tit.  Common  Recovery,  233,  ;;/.  9.  5 
Bac.  Mr.  tit.  Prerogative,  (E.  5.) 

Shaajf,  on  the  same  side,  cited  the  act  of  assembly  of 
October  1780,  ch.  45.  Owings  vs  Nonoood>s  Lessee, 
(ante  96.  j  Allen  vs.  Stetuart  and  Patten,  (a).  Laws 

CaJ  In  the  cose  of  Allen  vs.  Stewart  and  fallen,  in  the  court  of 
chancery,  at  May  term  1799,  ihe  bill  was  filed  on  the 
gust  1798,  and  it  was  admitted,  that  the  l:iml  mentioned  in  the  bill 
was  mortgaged  to  .JUen  by  I'atttn  on  the  20th  of  May  1771,  to  se- 
cure the  payment  of  £142  0  6  sterling  money,  with  interest  there- 
on on  the  20th  of  May  1773.  It  was  admitted  that  .illfn  was  a  sub- 
ject  of  the  King  of  Great  Britain,  residing1  in  Maryland  in  1775, 
and  went  to  England  in  that  year,  and  had  resided  there  ever  since. 
It  was  submitted  to  the  chancellor  to  determine,  from  what  time 
and  for  how  long  the  mortgagee  was  entitled  to  recover  intercut  on 
the  mortgage  debt. 

Ht!»sox,  Chancellor.  It  appears,  that  under  the  rircum  • 
of  this  case,  the  chancellor  is  under  no  necessity  of  deciding,  or 
submitting-  to  the  general  court,  the  cnicstion,  as  the  complainant 
"••itish  subject,  whether  or  not  the  interest  of  the  complainant, 
in  the  mortgaged  property  mentioned  in  the  bill,  wa>  <LK..U-d  by 
the  revolution  in  Amtrica,  and  the  confiscntion  act  of  this  state;  and 
tbkt  the  complainant  is  entitled  to  have  his  debt  paid  by  the  de- 
fendant, or  discharged  frojn  a  sale  of  the  property.  J)tm-n/,  that 
unless  the  mortgaged  debt,  with  interest  thereon  (except  from  the 
4th  of  July  1776  to  the  3d  of  September  17H>,)  until  paid,  sh:ill  be 
paid  on  the  9th  of  November  next,  the  property  in  the  bill  mention- 
ed shall  be  sold,  &c 

J   •'•>/  and  Sfiaaff,  for  the  ComplaiiuiA 


Harper,  in  reply,  cited  TfaZ/  vs.  Gitling's  Lessee 
1809).     Kelly's  Lessee  vs.  Greenfield.    Russell's  Lessee  vs^ 
Baker.     Gitting's  Jim.  Lessee  vs.  //a//,  and.  Owings  o 

Norwood's  Lessee. 

DONE,  J.  delivered  the  opinion  of  the  court  (b).  The 
court  are  of  opinion,  that  no  interest  of,  the  nature  of  a 
trust  estate  ever  was  vested,  either  in  the  proprietary  of 
Maryland,  or  in  the  state  of  Maryland,  in  place  of  the 
proprietary.  There  does  not  appear  ever  to  have  been  any 
act  done  which  could  create  a  trust  in  either;  and  that  the 
proprietary  and  the  state  could  only  be  considered  as  par- 
ties having  a  reversionary  interest  expectant  on  the  deter- 
mination of  an  estate  tail, 

The  jura  regalia,  as  attached  to  the  person  of  the  kino- 
in  England,  never  did  attach  to  the  lord  proprietary  of 
Mary  land. 

(a}  The  case  of  Lawson  vs.  The  Attorney  General,  in  the  Court 
of  Chancery  in  1800,  was  similar  to  that  of  Allen  vs.  Stewart  and 
Patten.  la  1769,  one  Semple  mortgaged  lands  to  lMwsont 
u  JJritish  subject,  and  being  nojthing  more  than  to  secure  the  pay- 
ment of  a  debt,  it  was  protected  by  the  treaty.  The  attorney  gene- 
ral was  m:ule  a  party,  who  admitted  the  legal  estate  to  be  in  the 
state,  and  the  land  was  decreed  to  be  sold  for  the  payment  of  the 
mortgaged  debt. 

(bj  Cftasr,  Ch.  J.  did  not  sit,  b^is  sister  beiiig  interested  lathe 
in  question^ 


OF  MARYLAND, 

t%   The  Attorney  Genera!,  (a).  Kelly's  Lessee  vs.  Grwn-       1808. 
fiehl,  2  Hurr.  <$•  M'Hen.  121.  RusselPs  Lessee  vs.  Baker* 

^ 

1  //arr.  4-  Johns.  71.  Gittjng'a  jun.  Lessee  vs.  //ou 
fa/i/e  112.)  5  J?ac.  .tf&r.  tit.  Prerogative,  (E.  3.)  Com. 
/%.  tit.  Estates,  (B.  31.)  Statutes  34  /fcn.  VIII,  cA.  20. 
«#c/s  o/*  assembly  of  November  1787,  e/i.  9,  and  1785,  c/u 
87.  7%«  #fl/e  rs.  Stump,  el  af.  2  #arr.  <$•  Jf<//en.  174. 
Laidler  vs.  Young's  Lessee,  (ante  69.) 

Martin,  (Attorney  General,)  Key,  and  IP.  Dorsey,  for 
the  Plaintiff^  cited  Culvert's  Lessee  vs.  Eden,  et  al.  4 
JIarr.  $  APHen.  279.  Ad  of  assembly  of  Nov.  1782,  ch. 
23.  /toe  v$.  Pegge,  1  7*.  /?.  758,  (note}.  Armstrong 
vs.  Pe.irse,  et  al.  3  Burr.  1900.  Goodlitle  vs.  Jones,  T 
T.  R.  46,  per  tfshhurst,  J.  Doe  u.y.  Wharton  fy  Dlxon,  8 
7T.  7?.  2.  GzV6.  on  'Uses  fy  Trusts,  83,  85,  86.  5  Buct 
Mr.  tit,  Prerogative,.  (E.  3).  Qwings  vs.  Norwood'* 
Lessee,  (ante  96.) 


CASES  IN  THE  COURT  OF  APPEALS 

186fi  The  lord  proprietary  held  the  dominion  and  property  of 

the  soil,  which  he  could  sell  and    dispose  of  in    ti. 
tianner  a*  any  other  person,  and  subject  to  the  same  bene- 
ficiary le^al  and  equitable  right.*,  as  in  the  hands  of  any 
other  person;  and  on  an  equitable  interest  being  obtained, 
agreeably  to  the  rules   of  his  land  office,    by  arn    j 
taking  out  a  warrant,  returning  a  certificate  of  smve\ .  and 
paying  the  composition  money,  the  party  became  entitled  to 
a  grant  which  he  could  compel  from  the  proprietary. 

In  the  present  case,  suppose  the  right  of  the  proprietary 
to  have  continued  in  full  force  until  the  year  1783,  1 
versionary  interest  in  the  lands  in  question  would  lia\c 
been  destroyed  by  the  deed  made  by  Richard  Moale,  the 
grantee  in  tail,  under  the  operation  ot  the  act  of  17S2,  as 
effectually  as  the  reversionary  right  of  any  citi/.en  of  Ma- 
ryland. 

The  question  then  occurs,  whether  the  case  >s  materially 
altered  by  the  proprietary's  rights  passing  into  the  hands 
of  the  state? 

On  this  view  of  the  subject,  a  doubt  might  arise,  whe- 
ther the  state,  being  vested  with  the  sovereignty  as  a  body 
politic,  can  be  affected  by  any  laws  in  which  she  is  not 
specially  named.  But  this  difficulty,  in  the  opinion  of  the 
court,  is  removed,  when  we  consider  the  state  as  standing 
in  the  place  of  the  proprietary,  in  which  view,  and  no 
other,  we  think  the  state  can  be  considered  in  this  case,  as 
having  no  beneficiary  interest  in  the  lands  in  question,  but 
holding  the  proprietary's  reversionary  interest  merely  by 
substitution  in  his  place,  and  for  the  use  and  benefit  of 
those  who  had  the  right  in  virtue  of  the  escheat  and  pur- 
chase from  the  proprietary. 

]Jy  the  last  will  of  John  jl/oa/e,  the  elder,  his  interest  in, 
the  lauds  passed  agreeably  to  the  di>pn:>iti<>n  made  by  the 
said  will,  and  the  deed,  made  in  17H3,  by  JticharU  Moafr, 
the  devisee,  and  the  patentee  of  the  land,  was  (..in potent 
to  bar  and  extinguish  the  reversionary  interest  of  the  state. 

As  these  points  have  been  elaborately  and  ingeniously  ar- 
gued by  the  learned   counsel    concerned,    the    court  have 
thought   proper  thus  shortly  to  notice  them,    and  ev 
their  ideas  relative  to  them. 

But  let  us  suppose  that  the  opinion  of  the  court,  so  f;ir, 
M  not  well  founded,  every  objection  to  the  plaintitTs  title, 
arising  from  any  particular  prerogatives  or  privileges  in  thl> 


OF  MARYLAND. 


proprietary  or  the  state,  which  would  protect   their   rights        1808. 
from  being  affected  in  the  same  manner  as  those  of  citizens,       v — 

Hownr«l 

is,  in  the  opinion  of  the  court,  completely  removed  by  the  v> 

operation  of  the  grant  of  I  AM?  a  Lot  Enlarged. 

The  escheat  and  grant  of  the  proprietary  thereon  will 
relate  back  to  the  original  grant  of  David's  Fancy,  and 
there  is  no  ground  on  which  to  presume  that  the  escheat 
fell  previously  to  the  grant  of  Lun's  Lot,  the  original,  ;^ut 
on  the  contrary  the  presumption  is  strong  that  it  did  not 
occur  until  nearly  about  the  time  of  the  obteution  of  tire 
escheat  warrant. 

By  the  grant  of  Lun's  Lot  Enlarged,  all  the  reversiona- 
ry interest  of  the  proprietary  in  David's  Fancy,  so  far  as 
JAM'S  Lot  Enlarged  interferes  with  and  includes  any  part 
of  David's  Fancy,  passes  to  a  citizen,  and  of  course  is  lia- 
ble to  be  operated  upon,  and  barred,  in  virtue  of  the  act  of 
assembly  of  1782,  by  the  deed  from  Moaie  to  Croxall  in 
1783. 

For  these  reasons  the  court  refuse  to  give  the  opinion 
and  direction  to  the  jury,  which  is  prayed  by  the  defen- 
dant's counsel.  The  defendant  excepted,  (a.) 

2.  The  second  bill  of  exceptions.  The  plaintiff  then 
read  in  evidence  a  certificate  of  the  survey  of  a  tract  of 
land  called  Upton  Court,  made  for  George  Yale  on  the. 
12th  of  March  1667,  and  a  grant  thereon  issued  to  David 
Poole  on  the  2-d  of  August  3,668,  by  which  it  appears  tha^ 
there  was  surveyed  "a  parcel  of  land  called  Upton  Court, 

(~a)  D.  Dittany,  Esquire's  opinion  on  the, following  case  stated. 
A.  was  seized  of  a  certain  tract  of  land,  under  a  title  derived  le- 
gaily  from  the  original  grantee.  B  obtained  a  common  warrant  of 
survey,  and  under  this  warrant,  a  survey  was  made,  which  includ- 
ed part  of  the  land  that  had  before  been  granted  to  A,  and  B,  on 
the  certificate  returned  by  the  surveyor,  obtained  a  patent.  Af- 
terwards A,  who  was  seized  as  aforesaid,  died  without  heirs,  and 
without  having  conveyed,  or  disposed  of  his  title,  in  consequence 
\vhereof  the  land,  of  which  A  died  seized,  became  escheat.  After- 
va/ds  C  obtained  a  warrant  on  live,  escheat,  and  as  a  part  of  the 
land,  whereof  A  died  seized,  was  included  in  the  survey  of  the  grant 
to  15,  the  query  is,  whether  B  is  entitled  to  the  part  so  included, 
or  C,  who  claims  under  the  escheat?  I  am  of  opinion  that  B  is  not 
entitled  to  any  part  of  the  land  under  the  common  warrant  that  1  « 
obtained,  which  he  was  not  entitled  to  when  he  obtained  ti.etvou 
a  patent,  and  as  at  the  time  when  the  patent  was  obtained  by  B, 
the  title  was  in  A  under  a  prior  grunt,  I  am  of  opinion  that  B  can- 
not legally  claim  any  title  to  the  fart  included  iu  the  patent  to  Ar 

Bwi'-il  !•>'•• 

August  13,  1783, 


CASES  IN  THE  COURT  OF  APPEALS 

lyin*   '»   Baltimore  county,  cm  the  N  side  of    Patcrpsco 
rivi    .  opposite  tin?    land  of  llngh  A'j/J.vn/,   beginning   at  ;-. 
bounded  rod  oak  standing  on  the   southernmost  side  of  a 
point  of  land    formerly  called  fl'/iflttune  Point,  and  from 
the  said  oak  bounding  on  the  said  river  by  aline  drawn  N 
Vf  ami   by  N  40  perches,   then  N   ^V  and   by  \\   40 
perches,   and  from  the  end  of  the  N  W  and   bv  W  line 
by  a  line  drawn  W  100  parches,   bounded  on  the  W  by 
a  line    drawn    W    N    \V  .30  perches,   then   N  W    100 
pcrchc?,  to  a  small  creek,  then  over  the  said  creek  by  a 
line  drawn  W  and  by  S  SO  perches,  then  W  S  W  45 
perches,  then  S  W  80  perches  to  the  mouth   of  another 
-mall  creek,  then   over  the  said  creek  S  and  by  W    K> 
perches,   then  S  Wand  by  S  55  pe rc/ies  to  a  point  which 
inaketli  the  mouth  of  a  branch  called  the  Middle  Hranch, 
then  bounding  on  the  said  branch  by  a  line  druivn  X  llr 
and  by  N  ISO  perches  to  a  marked  oak  opposite  a  smnM 
island,  and   from  the  said  oak  Ar E  50 perches  to  a  smalt 
branch  which  maketh  the  outward  narrows  of  the  saiil 
laud,   then  E  65  perches^  bounded   on  the  E   by  a  line 
drawn  N  E  150  perchr.s  to  a  bounded  red  oak  slant/in^ 
fry  the  N  fT  b)(inch,  tl^en   E.  S  E   50   perches,    then   F. 
N  E    1-0  perches,   then  E  S   E  44  perches,   then  S  S 
F.  100  perches  to  a  small  cove,  then  over  the  .said   cove 
l>v  a   line   dra\\u  S  E  100  perches,  to  a  point  called  The. 
Sandy  Point,  then  S  .-;  E  43  perches   to  another  marked 
oak  on  "Whetstone   Point,   and  from   tLc   said    oak  to   the 
first  bounded  tree,  containing  500  acres  of  laud   more  or 
less."     He  also  gave  in  evidence  the  plots  and  locations  in 
ih'H  cause,  and  the  admission  of  the  plaintitt'and  defendant, 
that  the  eleventh  line  of  Upton  Court  terminated  at  the 
letter  black  II  on  the  plots.     He  also   gave  in  evidence, 
that  the  twelfth    line   of  Uplon  Court   terminated   at   the 
black  letter  Aon  the  plots;  and  further  gave  in  evidence 
to  the  jury  that  the  beginning  o£  Duv  til's  Fancy,   the  ori- 
ginal, was  at  the  letter  A;  and  also  that  the  beginning   of 
David's  Fancy,  the  I'M  heat  HI  1738,    \\as  at  the  letter  A. 
The  plaintiff  then  prayed  the    opinion  of  the    court,    and 
their  direction  to  the  jury,  that  if  they  find  from  the  evi- 
dence in  the  cau^e  that  the  tirrlfth  tine  of  ('plon  Court  ter- 
minated at  the  letter  A,  and  that  the  beginning  of  Daiitf* 
/W»/,  the  original,  and  David's  Fancy,  >N    waa 

at  C»e  oauie  place,  that  then  the  escheat  certificate  and  ya- 


1OF  MARYLAND, 

tent  of  David's  Fancy,  granted  to  Richard  Moah  in  1 750,  1 808. 
oo  by  operation  of  law  relate  to  the  original  tract  called 
David's  Fancy,  patented  in  1G72;  and  that  the  expressi- 
ons in  the  escheat  grant  contained,  do,  by  operation  of  law, 
bind  the  escheat  land  to  run  with  the  true  location  of  the 
original  tract  of  David's  Fancy,  as  to  the  tivo  first  lines 
thereof,  so  far  as  the  said  lines  extend;  ami  that  the  first 
and  second  lines  of  the  original  David's  Fancy,  do  by  vir- 
tue of  the  expressions  therein  tfsecl,  bind  the  said  lines  to 
run  with  the  13th  and  14/A  lines  of  Upton  Court. 

Shaajf  and  Harper,  for  the  Defendant,  referred  to  Dor* 
sey's  Lessee  vs.  Hammond,  \  Harr.  $  Johns.  190.  Dar- 
iialPs  Lessee  vs.  Goodtoin,  1  Harr.  fy  Johns.  282.  Helm's 
Lessee  vs.  Howard,  2  Harr.  fy  fahen.  57.  Hnmmond',4 
Lessee  vs.  Norris,  (ante  ISO:)  and  JKyger  vs.  Airkpat* 
rick,  1  Harr.  fy  Johns.  298; 

DONE,  J.  delivered  the  opinion  of  the  court.  Three 
propositions  have  been  stated  by  the  prayer  of  the  plain- 
tiffs counsel^  for  the  opinion  of  the  court,  and  their  direc- 
tion to  the  jury, 

1st.  That  the  escheat  certificate  arid  patent  of  David's: 
Fancy,  granted  to  Richard  Moale  in  1750,  do  by  operation 
of  law  relate  to  the  original  tract  called  David's  Fancy. 

£dly.  That  the  expressions  in  the  said  escheat  grant 
contained  do,  by  operation  of  law,  bind  the  said  escheat 
land  to  the  true  location  of  the  original  tract  called  David's 
Fancy,  as  to  the  two  first  lines  thereof;  and 

Sdly.  That  the  first  and  second  lines  of  the  original 
tract  called  David's  Fancy  do,  by  virtue  of  the  expressions 
therein  used,  bind  the  said  lines  on  the  13th  and  14th  linr.5 
•f  Upton  Court. 

On  the  first  point,  the  court  are  of  opinion  that  the  es- 
cheat certificate  and  patent  of  David's  Fancy  do,  by  ope- 
ration of  law,  relate  to  the  original  tract  called  David'9 
Fancy.  That  this  is  a  case  strictly  within  the  principle 
and  rule  of  law,  of  relation  between  grants  and  certificates, 
which  have  been  adopted  and  ratified  by  solemn  decisions 
of  the  general  court  and  court  of  appeals,  and  that  in  law, 
reason  or  equity,  there  can  be  no  distinction. 

With  respect  to  the  second  and  third  points  proposed,  it 

has  beea  contended  br   the  defendant'*  counsel,    that  the 

* 


CASKS  IN"  THE  COUftf  OF  APPEALS 

1808.          court  arc  precluded  from  acting  upon  them,  by  (he  decision 
of  il.r  court  of  appeals  in  tlic  case    of  Dorset's  1. 
I/unnnonil,  anil  that  by  the  rule  laid  down  by  that  decision, 
t!i--e  are   to  be  considered    as  questions    of  location,  and 
iuu*t  be  left  to  the  determination  of  the  jury. 

This  court,  let  their  pi  i\ ate  opinions  be  as  they  may, 
will  al\\avs  cautiously  avoid  interfering  or  clashing  with 
the  judicial  decisions  of  the  superior  court,  and  will  at  all 
times  pay  respect  to  them  as  the  established  law  of  the  land. 

Whether  too  large  a  latitude  is  given  to  juries  as  to  the 
construction  •  >!'  grants  by  the  decision  of  the  court  of  4p- 
}>e;ils  in  I)orsry  vs.  Hammond,  and  how  far  the  rule  and 
principle  thereby  adopted  may  operate  to  preclude  uncer- 
tainty of  decision,  is  not  for  us  to  consider. 

The  question  then  arises,  whether  the  court  are.preclud- 
cd  by  that  determination  from  giving  their   opinion  on  the 
on  now  before  them?  and  we  think   that  we  are   not 
<  i-luded;  but  that  the  present  question  rests  on  grounds 
and  principles  entirely  distinct  from  that  case,  and   Jlelms 
'! -'I'-drtl,  which  has  been  cited  to  the  court. 

In  JJorxcy's  Lessee  vs.  Hammond^  the  question  was, 
whether  the.  binding  call  in  one  course  would  be  extended 
to  the  subsequent  courses?  the  first  using  imperative  bind- 
ing expressions,  which  were  dropped  in  those  succeeding, 
then  there  were;  distinct  courses,  either  of  which  might  be 
pursued,  and  one  of  which  must  be  rejected;  and  the  court 
of  appeals  were  of  opinion,  that  this  was  a  description  with 
a  double  aspect;  that  it  was  ambiguous  and  doubtful,  and 
that  therefore  it  was  discretionary  which  set  of  courses 
should  be  pursued,  and  ought  to  be  left  to  the  jury  as  a 
question  of  location. 

The   opinion   of  the  judges   in  Helm's  vs.  IJotvard  is 
founded  on  the  same  principle.     In   that  case  all   the  ex- 
:iins  could  not  be  gratified;  there  were  two  distinct 
and  different  courses,  one  of  which  must  be  pursued,    and 
the  other  i  Therefore,  the  court  said,  it  must   be 

left  to  the  jury  as  a  matter  of  location,  to  determine  which 
must  be  adopted,  and  which  i  ejected. 

In  the  j.  -cthe   court  are   of  opinion,    that  no 

doubt  or  ambiguity  appears.     Abstractly  conpii' 
\prensions  are  unquestionably  binding,  and   the  court 
of  appeals  have  so  far  concurred  with  this  court 


OF  MARYLAND.  265 

that  we  are  competent  to  determine  where  expressions  are        1808. 
imperatively  binding  by  particular  calls. 

The  court  will  not  interfere  with  the  right  of  the  jury, 
by  assuming  any  facts,   nor  will  they   take  upon  them   to 
determine  what  is  the  true  location  of  the  several  tracts  of 
land  delineated  on  the  plots,  or  any  of  them,  or  the  extent 
or  termination  of  their  lines.   We  will  not  take  upon  us  to 
say,  whether  the  tract  called  David's  Fancy,  as  located  by 
the  plaintiff,  begins  at  the  right  point,   or  whether  there  is 
or  is  not  evidence  to  the  jury  of  the  existence  of  a  tree  at 
the  termination  of  the  first  line  of  that  tract,  which  would 
vary  the  course,  or  make  it  longer  or  shorter  than  the  thir- 
teenth  line  of  Upton  Court.     But   the   court  think,  that 
they  are  not  restricted  by  the  decision  in  Dorsey  and  Ham- 
mond, from  giving  their  opinion  hypothetically  in  the  pre- 
sent case,  (which  they  believe  to  be  strictly  within  the  rule 
established  in  Dorsey  fy  Hammond,)  that  if  the  jury  should 
be  satisfied  from  the  evidence,  that  the  beginning   of  Da- 
vid's Fancy  is  rightly  located  on  the  plots  by  the  plaintiff", 
at  the  termination  of  the  twelfth  line  of  Upton  Court,  and 
there  is  no  evidence  to  them  of  the  existence  of  any  tree 
as  called  for  in  the  grant  at  the   termination   of  live   first 
line  of  David1  s  Fancy,  which  would  vary  the  same   from, 
the  course  or   distance  of  the   thirteenth    line  of  Upton 
Court,  that  then  the  expressions  contained  in  the  escheat 
grant  do,  by  operation  of  law,  bind  the   said  escheat  land 
to  the  true  location  of  the  original   tract    called    David' 9 
Fancy,  as  to  the  two  first  lines  thereof,  so  far  as  the  jury 
shall  believe  that  the  second  line   of  David's  Fancy,    the 
original,  did  actually  extend;  and  that  the  first  and  second 
lines  of  the  original  tract  called  David's  Fancy  do,  by  vir- 
tue of  the  expressions  therein  used,  bind  the  said  lines  on. 
the  thirteenth  and  fourteenth  lines  of  Upton  Court.    Which 
opinion  and  direction  the  court  do  accordingly  give  to  the 
jury.     The  defendant  excepted. 

3.  The  defendant  then  prayed  the  opinion  of  the  court, 
and  their  direction  to  the  jury,  that  as  the  plaintiff  hath 
in  this  cause  located  the  land  called  David's  Fancy,  sur- 
veyed for  John  Moale  on  the  1st  of  November  1738,  dif- 
ferent from  the  land  called  David's  Fancy,  surveyed  for 
David  Williams  on  the  22d  of  June  16n.  and  hath  not 
ou  the  plots  located  those  lands  in  the  same  way,  the 
VOL.  ii.  34 


CASKS  IN  THE  conrr  OF  APPF  0*8 

1808.  plaintiff  shall  not  be  permitted  to  give  any  evidence  to  the 
jury,  tliat  the  two  tracts  of  land  have  the  same  location; 
and  that  the  plaintiff  is  concluded  by  the  location  he  hath 
given  on  the  plots  of  the  tract  of  land  called  David's  Fan- 
cy, -urvey.'d  for  Jo!m  Muale.  He  further  praved  the  opi- 
nion of  the  court,  and  their  direction  to  the  jury,  that  as 
the  plaintiff  hath  in  this  cause  located  the  two  first  line* 
of  Davids  Fancy,  surveyed  for  John  Moale  the  1st  of  No- 
vember 1738,  runninsj  from  the  black  letter  A,  then  with 
the  black  broken  and  dotted  lines  No.  1  and  No.  2,  to  the 
black  letter  b,  and  hath  given  no  other  location  thereof  on 
the  plots,  the  plaintiff  is  not  permitted  to  give  in  evidence 
any  other  location  of  the  two  first  lines  of  that  tract;  but 
that  the  plaintiff  is  precluded  from  setting  up  under  the 
plots  in  this  cause  any  other  location  of  the  two  first  lines. 

Shanjf  and  Harper,  for  the  Defendant,  contended  that 
the  plaintiff  wight  not  to  give  proof  different  from  his  al- 
legations. They  cited  Hammond  vs.  Norris,  (ante 

Martin,  (Attorney  General,)  and  An/,  for  the  Plaintiff, 
cited  Carroll  el  al.  Lessee  vs.  Norwood,  \  Ilarr.  ($•  Johns* 
167.  (*ray  cf  ii.c.  Lessee  vs.  rfmos,  in  the  General  Court 
at  October  term  1796,  where  the  plaintiff  located  his  pre- 
ten-iuns  three  ways,  neither  of  which  the  jury  found,  al- 
though their  finding  was  in  favour  of  the  plaintift',  and  in- 
cluded more  land  than  he  claimed.  He  took  judgment 
for  the  land  claimed  by  him  within"  the  finding  of  the  jury. 
and  entered  a  release  as  to  the  residue.  Darnull's  Lcasrc 
vs.  Goodwin,  1  Harr.  4*  Johns.  28C.  Hicks  vs.  Scott,  in 
the  General  Court,  on  the  E.  S.  fticliolson  vs.  Ilcmalfy, 
3  Harr.  <$•  WHcn.  409,  where  dotted  lines  were  made  on 
plots  by  the  jury,  without  objection.  Kirkpatrich  vs.  Ky- 
ger,  1  Harr.  fy  Johns.  298. 

DONE,  J.  delivered  the  opinion  of  the  court.  The  court 
are  of  opinion,  that  as  the  plaintiff  has  not  located  his  pre- 
tensions co-extensive  with  the  location  of  David's  Fancy. 
tlte  original,  survpj.nl  in  1G71,  he  cannot  be  permitted  to 
^ive  evidence  to  the  jury  to  extend  his  pn-U-ii-i'in-  beyond 
the  lines  and  limits  which  he  h:i-  givm  to  the  tract  of  land 
called  David's  Fancy,  under  the  escheat  grant  to  John 
in  17.~>S,  but  is  estopped  by  that  location  from  going 
beyond  the  black  letter  V,  from  whence  he  inubt  run  to  the 


OF  MARYLAND.  26? 

head  of  Howard's  Branch,  at  whatever  point  the  jury  may        1808. 
find  the  same  to  be  agreeably  to  the  plaintiff's  location  of 
his  pretensions,  and  the  location  by  which  the  defendant 
has  taken  defence. 

The  court  are  further  of  opinion,  that  the  plaintiff  shall 
not  be  permitted  to  give  any  evidence  of  the  two  first  lines 
of  David's  Fancy,  surveyed  for  John  Moalc  the  1st  ot 
November  1738,  running  otherwise  than  as  they  are  locat- 
ed from  the  black  letter  A  on  the  plots,  with  the  black 
broken  and  dotted  lines  No  I  and  NO.  2,  to  the  black  let- 
ter b,  as  the  location  of  his  pretensions;  but  that  the  plain- 
tiff  is  not  precluded  from  giving  evidenc^  of  any  other 
lines  as  the  two  first  lines  of  David's  Fancy,  the  original, 
by  way  of  illustration;  and  that  the  plaintiff  may  support 
the  location  of  his  pretensions,  so  far  as  he  can  show  that 
the  same  are  located  within  the  limits  of  the  original  tract 
of  land  called  David's  Fancy. 

4.  The  Plaintiff  then  prayed  the  opinion  of  the  court? 
and  their  direction  to  the  jury,  that  from  the  place  where 
the  jury  find  the  termination  of  the  second  Hue  of  David's 
Fancy,  the  original,  the  third  line  thereof  must  run  the 
number  of  perches  expressed  in  the  grant,  and  cannot,  in 
its  length,  be  increased  or  diminished,  unless  proof  is  made 
of  the  tree  called  for,  or  the  place  where  it  stood. 

DOXK,  J.  The  court  Direct  the  jury  according  to  tha 
plaintiff's  prayer, 

5.  The  plaintiff  then  prayed  the  opinion  of  the  court, 
and  their  direction  to  the  jury,  that  from  the  place  where 
the  jury  find  the  termination  of  the  third  line  of  David's 
Fancy,  the  original,  they  are  competent  to  run  the  fourth 
line  thereof  to  the  head  of  the  branch  called  for  at  the  let- 
ter r,  the  gum  tree,  or  at  black  letter  F,  or  at  any  point 
between;  and  that  the  plaintiff  is  competent  to  recover  so 
far  as  his  pretensions  are  included  within  the  lines  of  Da- 
vid's Fancy,  the  original,  as  found  by  the  jury. 

DONE,  J.  The  Court  dp  not  think  the  last  prayer  is  em- 
braced within  the  decision  of  the  court  already  given. 

The  Court  are  of  opinion,  that  the  fourth  line  of  David's 
Fancy,  the  original,  must  run  from  the  place  where  the 
jury  shall  find  the  termination  of  the  third  line,  a  straight 


C A>K?  IN  1  HE  COURT  OF  APPEALS 

1808.        line  to  the  head  of  the  branch.  That  the  course  in  the  cer- 
tificate, and  the  course  located,  is  but  one  line. 

6.    The  thirJbill of  exertions.   The  defendant  produced 
and  swore  Zachuriak  Maccubbin,  as  a  \s  itne~s  to  the  jurv ,  to 
prove, and  who  did  prove,  that  Itlc/iurd  Moulr,  under  whom, 
the  lessors  of  the  plaintiff  make  title,  and  Joint  J^ILST  ll<nr- 
<m/,  tlie  defendant  in  this  cause,   emplnved     •  <>   to 

run  the  tract  of  land  called  David's  /I///'-//,  that  they  both 
attended  at  times  during  the  survey,  and  that  on  said  run- 
ning, the  fourth  line  of  the  land   was  run  course   and  dis- 
tance, by  and  with  the  leased  lands  of  M«nlt\  to  a  point 
on  JIuH-urd's  Branch,  to  or  near  a  gum  tree  located  on  the 
present  plots  returned  in  this  cause  at  the  little  letter  r, 
at  the  instance  of  Moale,    in  order  to  show  the  true  loca- 
tion of  that  line.   The  plaintirt'then  produced  to Muccubiln 
a  plot  of  the  land  called  David's   Fancy,   and   proved  by 
him  that  the  said  plot    was  the  one  which  he  made  out  for 
JJ/o«/f,  on  the  running   so  made;  that  the   saint;  now   pro- 
duced was  the  original  plot,  by  the  witness  made  out  for, 
and  at  the  instance   of  Moale. '   He  further  proved,   that 
the  lines  on  this  plot  are  actually  located  on  the  plots  in 
this  cause  made;  and  further  proved  by  Mucr.ubbiH,   that 
after  the  same  rupning  he  also  made  out  a  plot  for  the  de- 
fendant.    He  then  oR'ered  to  read  in  evidence  the  plot  so 
made  out  by  Maccubbin  for  Muule.       The  defendant  fur- 
ther proved  by  ^uccubbin,  that  the  corrected   linen  on  the 
plot  were  never  run  on  the  ground,  and  that  the  plot  \\as 
made  out  after  the  survey,  at  the  ins'ance   and   dii* 
of  Moulc,  and  that  the  corrected   lines  of  the  plot   were 
drawn  upon   the  plot  at  the  sole  direction  of  Moalr,  with- 
out the  knowledge,  and  in   the  absence  of  the  defendant. 
$Aaccubbi)i  further   proved,    that  he  has  no  recollection 
whether  he  did  or  did   not  run  any  of  the  lines  of  l'/>!i»i 
Court,  which  are  laid  down  on  the  plot,  and  that  the  whole 
plot,  and  all  the  explanations,  wen1    made  in  the   office  of 
Macrvbbin,  in    the    ab-ence   of  the  defendant;  and   that 
Moult,  during  the  time  he  was  employed    in   making  the 
plot  and  explunati.  n-,   frequently  was  present,  and 
him  directions  about  the  woik.       Mm  cnbliin  further  prov- 
ed, that  the  four  lines  terminating  at  black  loiter  C,  vie  re 
never  run  on  the  ground,   and  that  those  lines  nevci 
laid  down  on  the  plot   by  the  direction  or   with  the  know 
ledge  of  the  defendant,  or  in  hb  presence;  but  that  the 


OF  MARYLAND.  86$ 

waters  and  branches,  designated    on  the  plot,  were  made        1808. 
by  actual   survey.     The  defendant  then   objected  to  the 
reading  the  plot  and  explanations  to  the  jury. 

Shaaff,  for  the  Defendant,  cited  Jarrett  vs.  West,  I 
ffarr.  §•  Johns.  501. 

DONE,  J.  The  court  are  of  opinion,  that  as  evidence 
lias  been  given  by  the  defendant  of  the  runnings  of  the 
land,  it  is  proper  that  the  plot  should  go  to  the  jury,  for 
them  to  judge  of  the  effect  of  it  in  the  present  question. 

The  court  do  not  say  whether  it  would  have  been  evi- 
dence originally  had  it  been  offered,  but  as  the  defendant 
had  offered  evidence  by  the  witness,  who  made  the  survey, 
to  show  liichurd  Moale  did  not  claim^  it  ia  proper  the 
plot  should  go  to  the  jury. 

The  court  are  therefore  of  opinion,  that  the  plot  and 
Explanations  are  admissible  evidence  in  the  cause,  and 
they  are  permitted  to  be.  given  in  evidence  to  the  jury. 
They  were  accordingly  given  in  evidence  to  the  jury. 
The  defendant  excepted. 

7.  The  defendant  then  prayed  the  opinion  of  the  court, 
and  their  direction  to  tne  jury.     That  the  twelfth  line  of 
Upton  Court  must  run  as  nearly  as  possible  according  to 
the  course  and  distance  thereof,  as  expressed  in  tbe  origi- 
nal certificatfi  and  patent  of  that  tract,  so  as  to  strike  the 
branch  called  for  at  the  end  of  that  line. 

DONE,  J.  The  Court  are  of  opinion,  and  so  direct  the. 
jury,  that  the  course  and  distance  in  a  certificate  or  grant 
must  always  be  controled  by  a  call  expressed  in  the  same; 
and  that  in  this  case  the  course  and  distance  must  be  com- 
plied with,  as  nearly  as  they  can,  to  strike  the  branch  de- 
scribed to  be  at  the  end  ot  the  twelfth  line  of  the  tract  of 
land  called  Upton  Court,  as  the  jury  may  believe  the  said 
branch  to  have  existed  at  the  time  of  the  survey  of  the  said 
land;  subject  also  to  the  opinion  of  the  jury  as  to  the  varia- 
tion of  the  compass  on  the  said  line. 

8.  The  fourth  bill  of  exceptions.     The  plaintiff  then  read 
in  evidence,  the  certificate  of  a  tract  of  land  called  Oliver's 
Range,  made  on  the  26th  of  January  1722-3,  fur  Thomas 
Cromwell,  in  virtue  of  a  special  warrant  of  rcsurvev'tohim 
gran  ted,  to  resqrvey  the  tract  called  Dmid's  Fancy,  grant- 


•70  CASES  IN  THE  COURT  OF  APPEALS 

IS  cd  to  David  Williams  on  <hc  1st  of  May  1672,  for  100 

acre-;,-  whereby  was  re^urvevvd  for  Cronitcrll,  the  said  hind, 
with  contiguous  vacancy  added,  &C.  Hying  on  the  N  sidu 
offatapsco  river,  and  on  the  W  side  of  the  Middle  Branch, 
beginning  at  a  bounded  locust  stump  standing  near  the 
said  bianch,  said  stump  being  a  boundary  of  a  parcel  o{ 
land  called  I'pt^n  Court,  and  running  thence  with  said  land 
£  65  perches,  still  with  said  land  N  K  250  perches,  to  the; 
>  \V  branch,  then  N  N  "VV  86  perches,  thence  S  "NV  by 
W  70  perches,  thence  W  N  \Y  34  perches,  to  a  bounded 
•white  oak  of  John  Howard's  land,  called  Timber  Neckt 
standing  5n  a  small  fork  descending  into  the  head  of  How- 
ard's Branch,  thence  with  the  said  land  S  \V  by 
W  .i4  perches,  to  the  head  of  Howard's  branch,  thence 
bounding  on  the  said  branch  S  by  W  70  perches, 
still  with  said  branch  S  "27°  W  CO  pen  lies,  stilt 
with  said  branch  S  56°  W  70  perches,  still  with  said 
branch  S  50°  W  60  perches  to  the  Middle  Branch,  thenca 
S  20°  E  30  perches,  thence  with  a  straight  line  to  the  said 
locust  stump,  containing  183  acres  of  land  more  or  less," 
&c.  He  also  offered  evidence  of  ancient  runnings  of 
the  tract  called  Upton  Court,  by  which  the  fourteenth  line 
thereof  was  run  and  extended  to  the  N  W  branch  of  Pa- 
tapsco  river,  and  that  no  land  has  ever  been  taken  up  south- 
ward of  the  black  letter  6,  and  below  the  red  letter  L,  ex- 
cept what  has  been  held  and  possessed  under  the  tract 
called  Upton  Court,  or  the  land  called  David's  Fancy. 
The  defendant  then  prayed  the  opinion  of  the  court,  and 
their  direction  to  the  jury,  that  the  second  line  of  David's 
,  MII  \c\cd  tii  JJurid  lli/luiiim  on  the  22d  of  June 
1671,  must  be  teiminated  at  the  end  of  the  150  perches 
fiom  the  beginning,  from  whence  the  third  line  of  that  tract 
ir.iM  run  according  to  its  course  and  distance,  as  express- 
ed in  the  original  certificate  and  patent  thereof,  and  thQ 
fi.vrih  Hnr  from  the  end  of  the  third  line,  to  the  head  of 
*  4  branch. 


Hiirptr,  for  the  Defendant,  r'.trd  Tliompson  el  al.  Lessee 

D5.  Jlrotcn,  1  Harr.  \  John*.  ;>.>5.     Dallas  rs.  Stumbury, 

(in  the  General  Court  May  1801,)  Hiumnond  vs.  Mton, 

-.)     Owing*  ft.  AV//I/,    (Mi«/May    1796.) 

UrMcn'vs.  Gurretson,  (Ibid  October  1797.) 

AVy,  contra,  cited  Helm'*  Laaec  v««  Howard. 


OF  MARYLAND. 

DONE,  J.  This  court  are  bound  by  the  decision  in  Dor-  1808. 
sty's  Lessee  vs.  Hammond,  which  must  govern  in  deciding 
upon  the  prayer  now  submitted.  The  court  are  of  opini- 
on, that  the  termination  of  the  second  line  of  David's  Fan- 
cy, surveyed  for  David  ff illiams  on  the  22dofJune  1671, 
is  a  matter  of  fact  to  be  left  to  the  determination  of  the 
jury,  on  the  evidence  given  to  them  in  the  cause.  The 
court  therefore  refuse  to  give  the  opinion  and  direction, 
prayed  for  by  the  defendant's  counsel.  The  defendant 
exceptcd. 

9.   The  fifth  bill  of  exceptions.    The  plaintiff  then  gave 
ih  evidence,  that  the  twelfth  line  of  Upton  Court  terminat- 
ed at  the  lei ter  black  A,    on   the   plots;  that  the  original 
tract  of  land  in  1672,  called  David's  fancy,   began  at  the 
letter  black  A;  that  the  certificate  of  Oliver's  Range  began 
a't  the  letter  black  A;  and  that  the  escheat  land  called  Da- 
vid's Fancy,  in  1750,  granted  to  Richard  Moale,  began  at 
the  letter  black  A.     And  further  gave  evidence  to  the  jury, 
that  the  land   on  each  side   of  the  two  lines    proceeding 
from  the  letter  black  A  on  the  plots,  and  running  down  to 
the  N  W  branch  of  Patapsco  river,  has  been  always  held, 
claimed  and  considered,  as  Upton  Court  and  David's  Fan- 
cy, and  that  ancient  runnings  of  the  said  two  lines,    being 
the  thirteenth  and  fourteenth  lines   of  Upton  Court,  were 
from  the  letter  black  A,  down  to  the  N  W  branch  of  Pa- 
tapsco  river.     He  then  read  the  opinion  of  the  court,    and 
their  direction  to  the  jury,  contained  in  the  second  bill  of 
exceptions  in  this  cause.     And  gave  in  evidence  the   ad- 
missions of  the  defendant,  and  the   opinion  of  the  court, 
that  if  the  tree  at  the  end  of  the  third  line  of  David's  Fan" 
cy,  the  original,  therein  called  for,  was  lost,   and   no   evi- 
dence of  where  it  stood  was  given,  then  the  third  line  must 
be  run  its  number  of  perches,  which  number  could   not  be 
lessened  or  increased,  from  the  place  where  the  jury  should 
find  the  true  termination  of  the  second  line.     He  also  gave 
in  evidence  the  opinion  of  the  court  given  on  the  prayer  of 
the  defendant.  No.  3.     He  further  gave  in  evidence,  that 
the  true  location  of  the  thirteenth  and  fourteenth  lines   of 
Upton  Court,  and  the  first  and   second  lines   of  David's 
Fancy,  the  original,  are  truly  located  on  the  plots  from  let- 
ter black  A,  with  the  inner  black  lines  1  and  2,    to  little 
black  «,  by  the  side  of  Ihe  N  W  branch  of  Patapsco  ri- 


873  ('  ^ES  IN'  THE  COURT  OF  APPEALS 

1808.  ver.  The  defendant  then  prayed  the  opinion  of  the  court, 
and  their  direction  to  the  jurv,  tliat  if  they  are  of  opinion 
from  the  evidence,  that  the  -in-mal  bf^iunin;  tree  of  /)«- 
Fancy,  sun  eyed  fur  John  Maalc  on  the  1st  of  No- 
vember 17-'R.  is  proved  at  the  black  letter  A  upon  the 
plots,  and  that  the  first  line  of  the  land,  as  run  by  the 
surveyor,  and  expressed  in  the  certificate  and  patent  there- 
on issued,  was  run  ns  described  on  the  plots  bv  the  black 
broken  line  numbered  with  the  black  figure  1;  anil  that  the 
second  line  of  the  land,  as  expressed  in  the  certificate  and 
patent  thereof,  and  run  by  the  surveyor,  run  to  the  NT  W 
branch  of  Pafi/f^rn  river,  at  the  black  letter  b  on  the  plots; 
and  that  the  third  line  of  the  land,  as  described  in  the  cer- 
tificate and  patent  run  by  the  surveyor,  run  to  the  black 
letter  V  on  the  plots  and  that  the  fourth  line  of  the  land 
a<  run  by  the  Purveyor,  and  described  by  the  certificate  and 
patent  thereon,  run  to  the  head  of  Hr>tt'(ir,r»  Branch,  at 
the  hla<  k  letter  /',  and  from  thence  with  the  meanders  of 
ffoirnr<r.s  branch,  and  to  (he  be;jnn!:-.-.t,  that  then  the  cer- 
tificate, and  the  patent  thereon  issued,  do  not  in  law  ope- 
rate to  pass  any  land  which  mav  be  included  wiihin  the 
original  jrrant  of  Dnri<r>i  Fancy,  surveyed  for  David  JJ'il- 
limns  on  the  °,?d  of  June  Ifi71,  except  the  same  mav  be 
n'-o  included  within  the  metes  and  bounds  of  Davids  Fan- 
•in-eyed  on  the  Kt  ->f  Vovember  1738,  as  above  de- 
scribed: and  that  Drinks  Faun/,  surveyed  the  1st  of  No- 
vember 173R,  does  not.  bv  leiral  operation,  convey  all  the 
land  contained  within  the  original  certificate  and  patent  of 
f)aviil\  Fmin/,  surveyed  on  the  -2Cd  of  June  Ifi71,  unless 
tl-,c  T. articular  metes  and  bounds  of  David?*  Fann/.  sur- 
veyed the  1st  of  November  1738,  shall  also  include  the 
same. 

DONE,  J.  Thi«  point  has  hern  decided  by  this  court  in 
Gifliii','*  Jim'*.  I<  "  vs.  UnlL  The  court  therefore  re  - 
fuse  to  L'ive  the  opinion  and  direction  pnned  for  by  the 
defendants  coun-cl.  The  def  ndant  excepted. 

10.    Tip  slrfh  fill!  of  e.rrrfitinnn.       The  plaintiff  ofTen-d 
•  deposition    of  ff'indrt  f.<nrrmcf,  taken    under 
The  plaintiff*  having  prov- 
ed liv  .'Jinir  f.utrrriirr.  a    \\itne-s  s\vorn   in  court,  that  her 
'      '  .   went    on  hoard    the    Notftk 

..\>\v.\\   Jicugle,  to  go  to  Korjolk,  about  three 


OF  MARYLAND.  273 

Weekg  ago/a,  j     He  first  said  that  he  intended  to  go  to         1808 
Alexandria,  but  tlic  morning  lie  left  Jlallimorc,  he  inform- 
ed the  witness  he   would   go  to   Xorfolk.     That   when  he 
departed,  he  said   ho  should  sfay   till  the   fall.     That  the 
witness  hath  not  seen  or   heard   from  him   since,  and   that 
he  informed  the  witness,    that  if  it   suited  him,  he   should 
remove  his  family   there.     That   he  is   a  brick-maker  by 
trade.     That  the  witness  and   his  family,   consisting  of 
five  children  at  this  time,  live  in  Baltimore.       Tire  plain- 
tiiV  also  proved  by  another  witness,  John  F.  Holland,  that 
about  the  15th  of  May  1804,  he  settled  with  Jl'inde.l  Law- 
rence, when  he  informed  the    witness  that  he   owed    some 
money;  that  he  must  go  away  if  the  witness  did  not  sup- 
ply him.     The  witness  told  him  that   he  would,  but   that 
he  lost  so  much  time  by  attending  as  a  witness  at  Anna- 
polis, that  he  could   not  advance  him  any   further  sum. 
That  Lawrence  left  the  employ  of  the  witness  on  the  16th 
of  May  1804,  and  hath  not  returned   since.     That  Law- 
rence had  been   in  his  brother's  employ  for  2  or  3   years 
previous.      That  it  is  the  general  reputation  of  the  neigh- 
bourhood, that  he  has  loft  the  state,   and  gone  to  Norfolk, 
to  work  at  the  brick-making  business.     The  plaintiff  also 
proved  by  another  witness,   Joseph  Robinson,  that  he  the 
witness  is  acquainted  with  Lawrence,  that  he  informed  the 
wit'.ies?,  at  first,  that  he  intended  to  go  to  Alexandria,  but 
afterwards  told  him  that  he  was  going  to  Norfolk,  to  work 
at  his  trade.     That  this  conversation    happened   sometime 
ab;mt  the  early  part  of  May  1804,  and  that  he  the  witness 
hath  not  seen  him  since.     That  he  left  the  employment  of 
Holland  and  Ensor,  in  Baltimore,  where  the  witness  work- 
ed with  him.     The  defendant  objected  to  the  reading  of 
the  deposition  in  evidence  to  the  jury. 

DOVE,  J.  The  court  are  of  opinion,  that  the  deposition 
of  Jrindel  Lawrence  is  competent  and  legal  evidence  to  be 
read  to  the  jury. 

This  is  different  from  the  case  of  Darnall's  Lessee  vs. 
GooJwin.  There,  the  deposition  was  not  in  the  same  suit, 
nor  had  the  witness  been  in  the  state  for  a  length  of  time. 
Here,  every  means  has  been  used  to  obtain  the  attendance 
of  the  witness,  and  it  is  in  proof  that  he  is  out  of  the  reach 
of  the  process  of  the  court.  The  defendant  excepted. 

(~aj  The  trial  commenced  on  the  5th  of  June  1804. 
VOL.   n.  So 


CASKS  IN  THK  COURT  OF  APPEALS 

1808  11.    77ie  seventh  bill  of  exceptions.     The   plaintiff  then 

prayed  the  opinion  of  tlie  court,  and  their  direction  to  the 
jury,  that  although  David's  Fancy ^  the  original,  is  located 
by  the  plaintiff  from  A  on  the  plot*,  with  an  allowance  for 
variation  amounting  to  six  degrees  and  an  half  of  adegreej 
and  though  Dui'iil'n  Fanri/.  the  ocheat  patent,  is  located 
from  the  same  place,  with  an  allowance  of  tliree  degrees 
and  one  quarter  of  a  degree  for  variation,  the  jury  are  not 
bound  by  the  variation  thus  allowed,  but  may  find  the  true 
location  to  be  by  a  greater  or  le»*  variation,  as  shall  appear 
to  them  proper  from  the  evidence  in  the  cause. 

Martin,  (Attorney  General,)  for  the  Plaintiff,  cited 
Esp.  490. 

Shaajf  and  ffarpcr,  contra,  cited  Hammond  vs.  Norrin, 
(ante  150.) 

DONE,  J.  The  court  are  of  opinion,  and  so  direct  the 
jury,  that  they  may,  agreeably  to  the  evidence  given  in  this 
cause,  find  the  true  location  of  David's  I-'unrt/,  under  the 
fescheat  patent,  by  a  greater  or  lr-s  variation  of  tlie  compass, 
as  shall  appear  to  them  proper  from  the  evidence;  provided 
that  by  such  allowance  of  variation  they  are  not  to  enlarge 
or  extend  the  pretensions  of  the  plaintiff  beyond  the  loca- 
tion of  his  pretensions  made  on  the  plots,  or  beyond  a 
straight  line  to  be  drawn  from  the  letter  V  to  the  head  of 
Howard's  Branch,  wherever  the  jury  shall  find  the  same 
to  be.  The  plaintiff'  exrepted. 

12.  Tlie  eighth  bill  of  exceptions.  The  court  having 
given  their  opinion  and  direction  to  the  jury,  in  the  seventh 
bill  of  exceptions,  that  the  plaintiff  had  made  title  to  the 
land  called  David's  Fancy,  according  to  the  locations 
thereof,  under  and  in  virtue  of  the  certificates  and  patents/ 
and  the  court  having  determined  that  the  jury  might,  a- 
greeably  to  the  evidence  given,  find  the  true  lotation  of 
David's  Fancy,  under  the  escheat  patent,  by  a  greater  or 
less  variation,  as  should  appear  to  them  proper  from  the 
evidence;  provided  that  by  such  allowance  of  variation  they 
wore  not  to  enlarge  or  extend  the  preteusions  of  the  plain- 
tiff beyond  the  location  of  his  pretensions  made  on  the 
plots,  or  bey»nd  a  straight  line  to  be  drawn  from  the  let- 
ter V  to  the  head  of  Howard**  Branch,  wherever  the  jury 
«Uuuld  find  the  same  tu  be;  the  plaintiff  prayed  the  opiui 


OF  MARYLAND. 

0n  and  direction  of  the  court  to  the  jury,  that  if  the  jury  1808 
are  of  opinion,  from  the  whole  of  the  evidence,  that  the 
true  location  of  the  original  tract  called  David's  Fancy, 
and  the  escheat  tract  also  called  David's  Fancy,  runs  from 
black  A,  with  the  inner  black  lines  No.  1  and  No.  2,  to 
black  a,  by  the  side  of  the  N  W  branch  of  Pulapsco  river, 
and  from  thence  to  black  figure  3,  on  the  plots,  and  from 
the  figure  3  to  such  point  or  place  as  they  may  find  from 
the  evidence  to  be  the  head  of  Howard's  Branch,  that  then 
the  plaintiff*  is  entitled  to  recover  the  whole  of  his  preten- 
sions located  on  the  plots,  which  shall  lay  within  the  loca? 
tion  found  by  the  jury,  and  is  not  obliged  to  abandon  any 
part  of  his  actual  located  pretensions,  by  drawing  a  straight 
line  from  V  to  such  place  as  the  jury  shall  establish  to  b^ 
the  head  of  Howard's  Branch. 

DONE,  J.  The  court  are  of  opinion,  that  the  plaintiff 
Cannot  recover  any  land  in  this  action  which  shall  be  found, 
to  lie  without  and  beyond  a  straight  line  to  be  drawn  from 
the  letter  Y  to  the  head  of  Howard's  Branch,  wherever 
the  jury  shall  find  the  head  of  that  branch  to  be,  although, 
those  lands  shall  lie  within  the  lines  of  David's  Fancy,  act 
Cording  to  the  true  location,  as  so  found  by  the  jury,  and 
also  within  the  lines  of  the  plaintiff's  pretensions,  as  at 
present  located,  upon  the  plots.  The  plaintiff  excepted. 

13.  The  ninth  bill  of  exceptions.  The  plaintiff  then  pray-, 
ed  the  opinion  of  the  court,  and  their  direction  to  the  jury, 
that  if  he  is  estopped  from  showing  the  true  location  of  Da- 
vid's Fancy ,  the  escheat,  different  from  what  is  located  by 
him  for  his  pretensions,  so  as  to  prevent  him  from  reco- 
vering what  is  contained  in  his  pretensions  within  the  true 
location,  the  defendant  is  also  estopped  from  saying  that 
€he  true  location  is  different  from  the  location  given  by 
the  plaintiff. 

Martin,  (Attorney  General,)  and  Aey,  for  the  Plaintiff; 
cited  Com.  Dig.  tit.  Estoppel,  (B)  (C.)  Brereton  vs.  Evans, 
Cro.  Etiz.  700.  Ludford  vs.  Barber,  1  T.  R.  86.  Co.  Lilt. 
352,  a.  Gray  et  ux.  Lessee  vs.  Jlmos,  (October  1796.) 

DOXE,  J.  The  court  are  of  opinion  that  the  doctrine 
of  estoppel  does  not  apply  to  the  present  question  It  is 
doubtful  whether  estoppel  can  be  brought  at  all  into  vie\v 


CASES  IN  TilK   i  <M  KT  OF  Al'IT.ALS 

1808          in  (lie  case.     The  court  refuse  to  grant  the  prayer.        I 

ited. 

The  jury    returned    the    following    verdict:      The   jury 
find    the  true    location    of    Jltirui's    //'//<•_»/,     the  original, 
and    Sitn-id's  J'UHCIJ,    the   CM  heat,    to    l:e    from  the   begin- 
ning at    black    ./.    as   described    upon    the    plots    in    thin 
cause    returned,   then  with  the  inner  blat  k  line-  1  and     \ 
to    little   black  «,   on  the  north    we.it    branch   of  J'tttaj. 
river,  and  from  the  said  rt,  the  jtirv   find  the  third  line  to 
run  to  figure  black  ;»,  and    from   thence  the  jury   find  the 
fourth  line  runs  to   four  perches  below  big  black  /',  which 
the  jury   find    the   head    of    J/inrant'a  liiaruh,   and   from 
thence,    with  Howard's  Branch   and  the  Middle   Hranth, 
binding  on  the  same,  to  the  beginning  at  Ji;  and   the  jury 
find  for  the  plainlifi'  his  pretcn.-ions  fiom  the  >ai»i  ./,  with 
lines  1  and  -2.  to  «,  and  from  thence  to  /",  and   fn.m  /   to 
four  perches  below  bi^  /'.  \\Liih   the  jury  find  the  head  of 
JIuinird's   Branch,    and    with    the   same,    binding  on    the 
branches  to  the  beginning)  and  that  the  defendant  i>  guilty 
of  the  trespass  and  ejectment  complained  of  in  tin  decla- 
ration, within  the    said   pretensions,  in  the   n  .,IM  r   com- 
plained  of  by  the  plaintiff.     And  as  to  the  u-~.(,  >••   <  )   the 
trespass  and  ejertn.ent  complained  of  in  the  re.-. due  of  the 
tract  of  land  called  I)<n  /</'*  Fancy,    for  \vhich   the   di  len- 
tlant  hath  taken    defence  ujxm    the  plots   returned  in  this 
cause,    the  jury-    fu.d  the   defendant   is   in   no  wise  guilty 
thereof.      Judgment — That  the  plaintiff  recover  against  the 
defendant  1;U  t>innil  li/nis  aforesaid  yet  to  come  and  un- 
expircd,  of  and  in  all    that  put   of  the  said  tract  of  land 
called  J)<iviil'it  Fanciji  in  the  declaration  thentioned,  1-. 
&c.  which  is  contained   within  the  description  and  finding 
of  the  jury,    that  is   to  say.    In  ^inniny;   at  black  ./,    i:j  nn 
iid  plot*  in  this  cause  returned,  and  runi;iii^  with  the 
inner  black  lines  1    and  2  to   little  black  «,  on  the  north- 
west branch  of  /'tilajmco  river,  and  from  thence  to  /*,  and 
from  Tto  four  perches  below  big  /,  the  head  of  //,  irt! ,-<!'. <t 
Branch,  and  with  the  same,  binding  on  //..?.••<;/•</'.»  Branch 
anil  the   Middle  branch,    to    the   h  — ;u:d   ;I]M.  for 

costs.      As  to  the  residue, &c.  judgment  for  the  defendant. 
The  defendant  appealed  to  thN  court. 

The  cause  was  argued  at    the  last   term   before   Tn.fiii- 
MAN,  BUCHANAN,  NICHOLSON,  an  .1.    on  th. 

««coi7f/,  third,    fourth,  fijlh,  and  rixlh  bills  of  exceptions, 
takeo  by  the  defendant  bely  ft. 


OF  MARYLAND.  £7? 

Hftrper,  Shaaff  and  Taney,  for  the  Appellant,  stated,,  1808 
that  tin-  firxl  bill  of  exceptions  embraced  three  points — 
1.  Whether  the  Lord  Proprietary  be  not  esfoppcdby  his  nnint 
of  Lim*s  Lot  as  to  all  such  parts  of  David's  Fancy,  (the 
original,)  as  are  included  within  the  true  location  of  Litres, 
Lot?  2.  "Whether  the  entail  created  by  the  patent  of  Da- 
vid's Fancy,  (the  escheat,)  be  docked  by  the  deed  of  bar- 
gain and  sale  to  Croxall?  3.  "Whether,  admitting  these 
two  points  to  be  determined  in  favour  of  the  plaintiff  be- 
low, any  estate  in  the  escheat  land  passed  to  the  lessors  of 
the  plaintiff'  by  the  will  of  John  Aloale,  it  not  appearing 
that  John  Moale  entered  or  died  seized? 

On  the  first  point  they  cited  Kelly's  Lessee  vs.  Green- 
field, 2  Hurr.  §-  M'Hen.  121.  Russell's  Lessee  vs.  Bakcr^ 
\  llarr.  fy  Jo/ins.  71.  2  Blk.  Com.  295.  Co.  Lilt.  47,  b, 
352,  a.  10  Vin.  #6.471,  482,  485.  Fairlille  vs.  Gilbert, 

2  T.  n.  171.     Haynevs.  Mcdtby,  3  T.  /?.  441.     4  Com. 
Dig.  tit.  Estoppel,  80,  84.     10   Vin.  Ab  tit.  Estoppel,  (B. 
a.)     Co.  Lilt.  47,  a,  363,  b,  366,  b;  and  The  Attorney  Ge- 
neral vs.  Anderson,  1  Hurr.  fy  Mllltn.  219. 

On  the  third  point  they  cited  5  Bac.  Ab.  tit.  Verdict, 
(D.)  Malioney  vs.  Ashton,  \  Hnrr.  $-  M'-Hen.  210.  Slat. 
32  Hen.  VIII,  ch.  1.  5  Bac.  Ah.  tit.  Hills  and  Testa- 
ments, (D.  1.)  Stat.  34  Hen.  VIII,  ch.  5,  s  3,  5.  U'al- 
lis  vs.  Fletcher,  Cro.  Eliz.  530.  Ingram  vs.  Tothill,  I 
Mod.  217.  Hunter  vs.  Coke,  1  .SWA:.  238.  2  Bac.  M. 
tit.  Legacies  and  Devises,  (B)  51,  52.  '2  Blk.  Com.  310, 
209.  2-27,  228,  312,  523,  332,  338,  375;  and  2  Bac  Ab. 
tit  Descents,  (C)  30. 

That  on  the  second  bill  of  exceptions  two  questions  arise 
— 1.  Whether  the  escheat  patent  does,  by  operation  of 
lav,-,  relate  to  the  original  patent?  2.  Whether  the  expres- 
sions used  in  the  original  patent  of  David9 s  Fancy  dr, 
by  operation  of  law,  bind  its  second  line  on  the  fourteenth 
line  of  Upton  Court? 

As  to  the  first  question,  they  cited  The  Attorney  Gene- 
ral  vs.  Snowmen,  1  harr.  $•  Johns.  3S2.  Ratclijfe's  case 

3  Coke.  40.  Kelly's  Lessee  vs.  Greenfield,  2  Harr.  $•  MHen. 
2  Blk.  Com.  244.     77tc  Attorney  General  vs.  Anderson^   1 
Ifarr.  f?  M-Hm.  219;  and  Litt.  Sect.  348. 

As  to  the  second  question,  they  cited  If  elm's  Lessee  vs. 
Howard,  2  Harr.  $  M*Hen.  57.  Dorsey's  Lessee  vs.  Ham 
r.wnd,  1  //err.  4-  Jojms.  190;  and  Dqvis's  Lessee  v s.  Bat, 
(y,  Ibid  264. 


8  (  \sl-.s  IX  THE  COURT  OF  APPEALS 

1808  That  on   the  third  bill  of  exceptions,  the  question 

vheiher  a  plot  iu  which  the  <!»•!». -ndant  below  had  nothing 
to  do,  of  the  makini:  of  which  he  was  ignorant,  and  whick 
va.s  made  for  ami  under  the  direction  of  Ji.  Ajoale,  under 
v'.otn  the  Ichors  of  the  plaintiff  claim,  could  be  given  in 
evidence  against  the  defendant,  men-lv  because  it  was  in 
part  founded  on  a  survey  made,  at  his  instance  and  that  of 
/r.  Moule?  They  cited  Anonymous,  \  Stra.  95.  Hull. 
N.  P.  2-17,  £48;  and  liridgmun  vs.  Jennings,  I  Ld.Jiuym. 
7.34. 

That  on  the  fourth  bill  of  exceptions  two  questions  arise 
—  1.  "Whether  the  termination  of  the  second  line  of  Da* 
vid's  fancy,  (the  original.)  be  not  a  question  uf  law  for 
the  decision  of  the  court?  2.  "Whether  the  true  legal  con- 
struction of  the  patent  of  David's  Fancy,  (the  original.)  b« 
not  to  terminate  its  si.cond  line  al  the  end  of  150  perches? 
On  the  first  of  these  questions  they  cited  Ciilntun's  Lei- 
tfevs  Smith,  1  JIarr.  «V  -Johns.  253.  Gittingj't  Lessee  vt 
Jffd/,  (on  appeal  in  this  court. )  Dorset's  Lcxxce  vs.  Ham- 
mond. I  JIarr.  $•  Jo/ins.  190. 

On  the  second,  Giltings'x  Lessee  vs.  Half,  (on  appeal  in 
this  court.) 

That  on  i\\efflh  bill  of  exceptions,  the  question  was, 
vliclher  the  location  of  the  escheat  patent  of  Dniid's  Fan- 
cy be  not  independent  of  the  location  of  the  original,  ex- 
cept so  far  os  the  lines  of  the  former  expressly  call  to  bind 
on  those  of  the  latter?  They  cited  Hchn's  Lessee  vs.  How- 
ard, 2  Larr.  «$'  M-Ilen  57.  Dorscy's  Lessee  vs.  Hammond, 
1  Ifarr.  fyJohn.i.  190.  J/oicanPs  Lessee  v 8.  Cr<nnu-tll,  I!>id 
118;  and  Havhim  vs.  Hanson,  I  Jfarr.  «.y  J///n;.  .- 

That  on  the  sixth  bill  of  exceptions  two  questions  arise. 
1.  "Whether  a  deposition  taken  on  the  survey  could  be 
read  in  evidence,  unless  it  appeared  that  the  witness  was 
dead,  or  removed  to  a  foreign  country?  Whether  a  mere 
temporary  absence  be  sufficient?  2.  \Yhethcr  in  this  case 
the  plaintilV  below  be  not  precluded  by  his  neglect  from 
the  benefit  of  this  testimony?  They  cited  DarnaH's  Lease* 
vs.  Goodwin,  \  Hurr.  4-  Johns.  282;  and  1  Lojfi's  (nib. 
60. 

That  three  questions  arise  upom  the  record,  independent 
of  and  unconnected  with  the  bills  of  exceptions — 1.  That 
the  death  of  one  of  the  lessors  of  the  plaintill.  since  the  ac- 
tiuu  was  brought,  and  suggested  after  the  jury  were  sworn. 


OF  MARYLAND.  279 

makes  the  proceedings  erroneous.  2.  That  the  finding  of       1808. 
the  jury  is  uncertain;  and  S.  That  the  judgment  is  enter- 
ed to  recover  all  the  several  terms  stated  in  the  declarati- 
on, including  the  term  on  the  demise  of  the  lessor,  whose 
death  was  suggested. 

In  arguing  the  first  and  third  questions  they  cited  How- 
ard's Lessee  vs.  Gardiner,  3  Harr.  4*  31' Hen.  98.  The 
acts  of  1785,  ch.  80,  and  1801,  ch.  74,  s.  38.  Corn.  Dig. 
tit.  Abatement.  Jlslin-  vs.  Parkin,  2  Burr.  667,  60S. 
Parker  vs.  Harris,  1  Sulk.  262.  Henrique*  vs.  Dutch 
West  India  Company,  2  Stra.  808.  Lumpen  vs.  Hatch, 
laid  934.  Frederick  vs.  Lookup,  4  Burr.  2021;  and 
Cumin  $  vs.  Sibly,  Ibid  2490. 

As  to  the  second  question  they  cited  Bac.  M.  tit.  Per* 
diet,  (Q.)  and  Gilt  ings' s  Lessee  vs.  Hall,  1  Harr.  «.$•  Johns. 
14. 

Johnson,  (Attorney  General,)  Key,  Mason  and  Martin, 
for  the  Appellee,  on  the  first  bill  of  exceptions  cited,  a* 
to  the  first  point,  1  Pow.  on  Cant.  152,  160.  Co.  Lilt. 
45,  a,  47,  b,  352,  a,  363,  b.  2  Blk.  Com.  245,  346.  1 0  Vin. 
•tfi.tit.  Estoppel,  433,  pi.  1;  461,  pi.  3;  463,  pi.  22,  pi.  26; 
475,  pi.  4;  476,  pi.  1.  GoodtUk  vs.  Morse,  3  T.  R.  365. 
3  Com.  Dig.  271 ;  and  Pickelt  vs.  Doivdall,  2  Wash.  Rep. 
106.  As  to  the  second  point,  they  cited  Culverts  Lessee.  vs> 
Eden,  2  Harr.  8f  M  Hen.  279.  And  as  to  the  third  point 
they  cited  Lux's  Lessee  vs.  Peflclt,  1  Harr.  $•  Johns.  83. 
(note.)  Taylor  vs.  Horde,  1  Burr.  60.  16  Fin.  Jib.  tit. 
Pos-session,  455,  pi.  1  Smith  vs.  Stapleton,  1  Plowd. 
431.  Moore.,  214  Deux  vs.  Jffferics^  Cro.  Eliz.  352;  and 
Sachfvercl  vs.  Bognott,  Ibid  356. 

On  the  second  bill  of  exceptions,  they  cited  as  to  the 
first  question,  2  Blk.  Com.  244,  245.  Burgess  vs.  IVhcate, 
1  W.  Blk.  Ren.  146,  163,  166.  Co.  Lilt.  215,  b;  and 
7he  State  vs.  72m/,  4  Hurr.  4-  M-Hen.  6.  And  as  to  the 
second  question  they  cited  fiorsey's  Lessee  vs.  Hammond, 
and  Gibson's  Lrssee  vs.  Smith. 

On  the  fourth  bill  of  exceptions  they  cited  Dorsey's 
Lessee  vs.  Hammond. 

On  the  fifth  bill  of  exceptions  they  cited  Gitlings's 
Lessee  vs.  Hall,  1  Harr.  fy  Johns.  14.  Tolson's  Lessee. 
«.r.  Lanham,  (ante  174;)  and  Gittings's  Lessee  vs.  Hull, 
(«D  appeal  in  this  court) 


X30  ISES  fNT  THE  CO1  «t  <><,-  \ppK\LS 

()t,  th<.  ,s/.r//j  bill  of  exception-;  they  referred  to  the  acts 
of  Jn!y  i:-:i,  ch.  14.  amUuly   17'  ,»on 

Vt.  flii/rrs,    I  Ilnrr.  «S'   John*.  10-2.      f ;/."/.    />.    A',  f.f).      I 
LnflT*  Gilh.  :  :m. I   /•',•//  r.v.    Ifnn.l,  1  .M.  41  .V 

On  flio  alle-.r.-Hl  errors  in  the  record  they  cited,  (in  the 
Jirat  anil  third  points  raided.  Far  r*.  7Jrmi,  1  Ihirr. 

.V.I.  Oi/M  M.  flri/--t,m,  3  7J»/rr.  I  S'.>7.  7,'urtP. 
-C/fcf.  -Ill,  -11.1,  IN.  4 IS,  4.10.  .I.Uitnn  vs.  Oo'n-m/.  \ 
No.!.  •:.!.»,  .'7/io/j.  1  .S"«/A-.  '2fiO.  Dull.  X.  /'.  ;K.  Thrmtout 
ts.  Grey,  1  Sfra.  1O5G.  Fair  claim  rs.  Shtrmlilh*  :>  7^/rr. 
1290.  »/fi7m  v«.  Parkin,  2  Burr  6f>7.  t  7/«r.  .7,0.  tit. 
.-t'-fitement,  (F.)  And  as  to  the  second  point  they  cii«-d 
Collinzhmii  rs.  Kin?,  1  7?»/rr.  G28,  G2'l,  (».>().  Cm-roll  ei 
(if.  Lessee  rs.  .Vonroor/,  I  77arr.  *S*  Johns.  \  86.  Daman's 
Lexxee  vs.  Goodwin,  Ibid  284.  Sultivane  vs.  Scrizrarr.  I 
Slrn.  005.  Cornell  vs.  CIrtvering,  2  7,7.  /.V//, 
Jihnln»cr  vs.  Xintlrrromlie,  Ib.  1470  2  7?</c.  .76.  230, 
231,  23.';  and  JHiiilin^hain  vs.  »lndrm--,  \  V/A 

Curia  adv.   vu'.t. 

Tin:  Coi-nr,  (at  this  term,)  concurred  in  the  opinions 
of  the  General  Court,  a«  contained  in  the  several  bills  of 
Exceptions  titken  on  the  part  of  the  defendant  in  that  court, 
and  were  of  opinion,  that  there  was  no  error  either  in  the 
judgment  or  in  the  record  of  proceedings. 

NICIIOI.SOX,  J.  T  am  for  affirming  the  judgment  upon  all 
the  bills  of  exceptions:  also   upon  the  alleged  uncertainty 
of  the  verdict  and  judgment;  also  for  the  allein-d  error  a* 
to  the   death  of  Richard   77.    Moale.     I   am   decided!;, 
opinion,  that   the  death  of  the  plaint ift"s   li  not 

abate  a  suit  in  ejectment.  In  affirming  the  judgment  of 
the  general  court,  upon  the  first  bill  of  exceptions,  I  \\  Ni 
it  to  be  understood  that  I  do  not  entertain  the  most  remote 
idea,  that  the  Lord  Proprietary  was  not  liable  to  be  es- 
topped, as  other  individuals  are,  or  that  he  hail  any  other 
of  the  incilrntnl  prerogatives  of  the  Ivin^s  of  l^n^hind:  he 
had  onlv  surh  of  the  direct  prerogatives  as  were  expressly 
granted  by  the  charter. 

JUDGMKNT  AFI  i:iMKl>. 


OF  MARYLAND. 

WILSON'S  Ex'rs.  vs.  SLADE,  el  v.x.  1808 

J  UXE 
APPEAL  from  the  General   Court.     Debt  on  the   same 

bond  as  in  the  case  of  the  present  appellees  and  Morgan, 
(ante  38.)  In  this  case  there  were  the  same  pleadings  as 
in  that  case,  with  the  additional  plea  of  plene  (til»ii/iisfra-jn®^.d**eap"™$ 
vif,  and  the  general  replication  thereto.  At  the  trial,  at %""  ^"n^ftf 
October  term  1803,  the  plaintiffs,  (now  appellees,)  offered  deii".-otof  H nV '-ill 
no  evidence  of  any  assets  which  had  come  from  John  co'me  to  ui  iiand» 
Jf'ilfion,  deceased,  the  defendants'  testator,  to  the  hands  (V^cu"ur"^ 
or  possession  of  the  defendants?  but  contended  for,  and  necessary  for  the 

.    .  ~  i     i      •       i-  •  plaintiff   to    «liow 

prayed  the  opinion  ot  the  court,  and  their  direction  to   the  'imt    a  sen    had 

co'-.t  to  i  hi-  hands 

iury,  that  on  the  plea  of  plene    admimstravit   it   wasnotof|h«-  executes, 

and  ill  it    He  plea 

necessary  for  the  plaintiffs  to  show  that   any  assets  had  vv;ts  "°lana(l"lis- 

si, in    of    assi-u    to 

come  to  the  hands  or  possession  of  the  defendants;  for  that  ft"  *5SSMt  °f  •*? 

plamtitt  s    claim, 

the  plea  was,   unless  the  defendants  proved  the  contrary  b}  cutor»BhdU   °not 
the  production  of  the  inventory,  or  by  other  evidence,   an  Jy^JUe  p,"™^ 
admission  of  assets  to  the  amount  of  the  plaintiffs'  claim. 'tm-y^or^by'othar 
The  Court,  [Done  and    Sprigg,  J.]  gave  the  opinion  and cviaencc 
direction,  on  the  authority  of  the  case  of  Slude  and  wife 
,n  gainst  Mo  rgan.     The  defendants  excepted,  and  the  ver- 
dict and  judgment  being  against  them,  they  appealed   to 
this  court. 

Johnson,  (Attorney-Genera!,)  and  Magmder,  for  the 
Appellants. 

Martin,  7/«J/and  71  Buchanan,  for  the  Appellees. 

THE  COURT  reversed  the  judgment  of  the  General  Court) 
ypon  the  same  grounds  as  in  the  case  of  Morgan  vs.  Sladet 
ft  uL  (ante  38,)  and  awarded  a  proccdendo. 

JUDGMENT  REVERSED. 


JONES  et  al.  vs.  JONES. 

APPEAL  from  a  decree  of  the  Court  of  Chancery.  The 
bill,  filed  on  the  29th  of  July  1799,  by  the  appellants,  as  £;i;)a  l^a»; »'( (»||j 
complainants,  states,  that  Susanna  Jones,  mother  of  the  J^'.",.  ^byVa1^ 
Complainants  and  defendant,  being  seized  in  fee  tail  (if  a  g"^,"'',!" j1  *f{^ 
tract  of  land  in  Saint  Mary's  county,  called  The  first  anrf-ftJlFto  A22 
second  parts  of  Pounlnetfs  Oversight,  and  desirous  that  fhecoiii'iTfchan- 
the  same,  on  her  death,  should  descend  to  all  her  child ren  p^l/cannot  u!>el 
equally,  or  be  subject  to  her  disposition  by  will,  did  by  iue iu^iT 

clniicery     cannot 

decree  tltnt  a  Jced  of  conveyance,  exrcntei]  hj  a  tenant  in  tail,  may  be  recorded  afu  r  ih.  expirati- 
on of  th'-  ii.ii''  'i  uiu-ci  by  ia\v  tor  ihc  recording  of  Uetd*— jui  vsuu  tail  jiut  Licuijj  witlua  the  proviso 
ao»  ot  tUe  act  of  ""sj,  i-ft  72,  i  u. 

VOL.    II.  36 


SK*  IX  THE  COURT  OF  APPEALS 

1808         do  oil  of  indenture,  in   due   form  of  law,  rxor'ited  and  ac- 
I.-i' .  'her  with  Jluthiit*  Jnni. v,  her  husband,  oil 

the  l."5rh  of  July  ir07,  bargain  ami  -ell  tin-  same  to  Hcnja- 
min  II  illiunix.  for  the  u.-e  and  behoof  of  Mafhias,  her  hus- 
band, during   his  life,  then  to   the  n-e  of  Xt--?aiina  during 
her  life,  and  from  and  after  her  decease  1o  (lie  use  and  be- 
hoof of  Mich   person  or  pTMins.,  and  for  such  estate,  and 
subject    to   such    provisos,   &.c.   as   she,    Simanna,    by  any 
deed,  &c.  or  bv  her  last  will  and  testament,  to  be  bv  lief 
duly  executed,  should  give,  grant,  limit  or  appoint,  and  for 
\vant  of  such  appointment,  or    until  such   appointment,  to 
the  use  and   behoof  of  Susanna,  and  her  heirs,  for  ever. 
Shortly  afier   the  execution  of  this  deed,  it  was  placed  by 
Susanna   in  the   hands  of  her  husband,   to  be  recorded; 
and  within  six  months  from  the  execution  of  the  same  Su- 
sanna was  taken  ill,  and   in  order  to  carry  irito  effect  the 
power  given  by  the  deed   to  her  to  make  a  will,  she  sent 
for  a  person  to  write  her  will,  and  gave  directions  for  the 
land  to  be  equally  dNpoM'd  ofl'  amongst   all  her   children, 
but  before  the  same   could  be  formally  done,  she   became 
incapable  of  executing  it,  and  died   in  a  short  time  there- 
ifter.     On  her  death,  HlntJiias,    the   complainants'  father, 
believing  the  deed  was  void,  his  wife  not  having  been  able1 
to  dispose  of  the  premises  by  her  will,  omitted  to  have  it 
recorded.     That  it  was  owing  to  the  want  of  information 
of  their  father,  and    his  ignorance  of  the  operation  of  the 
deed,  that   lie  permitted   the  time  to  elapse  in  which  the 
deed  should  have  been  recorded,  and  that  it  was  not  ow^ 
ing  to  any  fraudulent   design   or  intention  of  the  party  or 
j.artics   (.•'•Mining  under  the  deed,  (hat   it  was  not  recorded 
agreeably  to  law.     That  their  father  was  also  seized  in  fee 
in  his   own  right,  of  a  considerable  real  estate  in  the  said 
county;  that  he  entertained  doubts  whether  the  land  men- 
tioned   in    the  deed    wa-i   actually  ei. tailed  on  his  \\ife.oi 
Vas  her's  in  |Ve  simple,  but    <m  beiui;  fully  made  sensible 
the  -aiM-  led,  and  that  the  deed  would  have  been 

effectual  to  dock  the  entail,  though  recorded  after  hi>  \\ilV> 
death,  by  which   means  the  land   would  have   i!e-i  ended 
equally,  he,  in  order  to  do  justice  to  his  younger  children, 
resolved,  that  unless  Ihe defendant  would  ieliriqui.-h  hi* 
claim  by  primogeniture,  anil  place  his  brothers  and  - 
in  the  same  situation  \\ithhiniself,  to  convey  all  1^ 
estate  amongst  the  younger  children  to  the  exclusion  of  the 


OP  MARYLAND.  283 

eldest;  but  that  from  sudden   indisposition,  and  a.  hasty        1808 
death,  the  father  was  prevented  from    effectuating  his  de-      l— ^v^J 

Jnnei 

termination;  and  that  by  his  death  intestate,  his  estate  dc-  ™ 

scended  equally  amongst  all  his  children,  by  which  the^ 
tldest  son,  the  defendant,  claims  the  whole  of  the  mother's, 
and  an  equal  share  of  his  father's  estate.  Prayer,  that  tho 
(leed  may  be  recorded,  &c,  The  defendant  demurred  to^ 
the  bill. 

HANSON,  Chancellor,  (December  1G,  1803.)  It  has,  or\ 
a  former  occasion  («),  been  determined  by  the  general  court  ^ 
on  a  case  submitted,  that  a  deed  executed  by  a  tenant. in 
tail,  and  not  recorded  within  six  months,  but  recorded  af- 
ter the  tenant's  death  under  a  decree  of  this  court,  should 
not  operate  against  the  issue  in  tail.  This  being  the  case, 
the  party  claiming  under  the  deed,  has  not  a  title  to  the 
land,  and  therefore  the  chancellor  conceives,  that  he  can- 
not, with  propriety,  decree  the  recording  of  the  deed. — . 
j)ecreed,  that  the  demurrer  in  this  cause  filed  be  allowed 
and  ruled  good,  and  that  the  defendant  be  hence  dismiss- 
ed, but  without  costs,  the  chancellor  deciding  merely  on 
the  opinion  of  the  general  court,  in  a  single  instance  giv* 
en,  and  never  affirmed  by  the  court  of  appeals. 

The  chancellor  here  takes  occasion  to  observe,  that  he 
always  decides  according  to  the  known  opinion  of  th$ 
court  of  appeals,  or  that  of  the  general  court,  where  the 
court  of  appeals  lias  given  no  opinion;  but  that  there  ought 
to  be  a  distinction  between  the  decision,  of  the  court  of 
dernier  resort,  and  of  a  court  below.  The  chancellor  knows 
not  but  that  this  suit  is  instituted  for  the  purpose  of  ob- 
taining the  opinion  of  the  court  of  appeals.  From  this  de- 
cree the  complainants  appealed  to  this  court. 

The  cause  was  argued  before  CHASK,  Ch.  J.  TILGHMAV^ 
BUCHANAN,  NICHOLSON  and  GANTT,  J, 

Key,  and  Johnson  (Attorney- General.,)  far  the  AppeU 
lants,  referred  to  the  acts  of  1773,  ch.  1,  and  October, 
1782,  c/t  23.  Luldlcr  vs.  Young* a  Lessee,  (ante  G9.)  The 
act  of  1735,  ch.  72,  s.  11.  Pow.  on  D?.v.  393.  H'iUs  vs. 
Palmer,  5  Burr.  2G.15;  and  Hunipson  vs.  Edclen,  (ante  64.) 

Martin  and  TP.  florscy,  for  the  Appellee,  cited  2  Dae.. 
M.  tit.  Estate  in  Tall,  (D)  553.    Jfoss  vs.  fioss,  Chan, 
{a}  Sidgely  vs.  JK'Laughltn,  3  /£,»•/.  £?  J/'//«i.  2iO. 


A-K>  IN   niKCOCRTOF  APl'KALS. 


Or.  171.     Ri<l:r(1y  vs.    M'f.ai'srMin.    3   I/arr.  & 

UXi  i  s.  1  /<///,  1  J/arr.  .y  ./O//HS. 

CIIASF,  Cb.  J.     I  am  of  opinion  tbat  the  decree  of  the 
Cliancellor  he  affirmed,  \\ilh  cost*. 

It  is  certainly  an  established  principle,  (hat  the  heir  or 
issue  in  tail  claims  the.  land  p(r  fornnnn  tfuni,  and  does 
not  derive  his  title  to  it  from  ihe  tenant  in  tail,  who  in 
rt  -pect  ot  s.i  id  land  is  nothing  more  than  the  conduit  pip«', 
through  which  the  title  to  the  land  is  conducted  to  il.r  i- 
sue  in  tail,  whose  claim  to  it  is  from  the  donor  according 
io  the  gift.  'J  he  land  of  the  heir,  or  issue  in  tail,  is  not 
liable  to  the  debts  of  the  tenant  in  tail,  nor  U  In-  um-pd- 
lalile  to  execute  or  fulfill  any  contract  made  by  his  ances- 
tor lor  the  sale  or  conveyance  of  said  land.  '1  he  is.»ue  in 
tail  cannot  be  barred  of  his  ri'Jit.  (rj\  by  fine,  common  re- 
covery, or  deed  executed  according  to  a«  '  of  a^-nnbly. 
The  deed  to  bar  him  n.ust  be  operative  in  the  1 
the  tenant  in  tail,  for  immediately  on  his  dvath  the  til!. 
the  issue  attaches.  \i'  the  deed  had  been  mnidrd  «.vithin 
the  six  months,  it  would  have  operated  bv  relation.  (Km 
the  date  of  the  deed,  and  would  have  barred  the  i;i-ue  in 
the  life-time  of  the  tenant  in  tail. 

An  estate  tail  is  not  within  the  act  of  1785,  rji.  72,  for. 
recording  deeds.  The  petition  must  be  filed  against  the 
heir,  devisee,  executor,  or  administrator  of  the  £ian»cr, 
and  with  respect  to  the  land  entailed,  the  heir  or  i>Mie  in 
tail  is  neither  heir,  devisee,  executor  or  administrator. 

I  have   shown  he  cannot  be  considered   as    In-ir.      If  th« 
land  was  devised  to  him  by   the  tenant    in  tail,    he   would 
rot  take  as  devisee,  but  by  a  title  paramount  J.:T  fi-r; 
</('?!/,  which   accrues  to  inslunlc  of  the  death  of  the  ances- 
tor. 

The  case  of  executor  or  administrator  can  ir.lv  niato  to 
estates  !or  \tiai>  or  an  estate  for  the  life  or  li\es  of  others; 
1iom  all  which  the  roncl  j»'mn  is  lair  and  irroi*fiblf.  that 
an  estate  tail  is  not  comprehended  within  the  act  of  17*5. 

This  que'-tioii  \  ;n  dn  i-'rd  liv  the  jtid^o  cl   1: 
court,  on  a  reference   to  them  b>    tiie.  chancellor,   at  Way 
term  1794,    in  the  case  of  CAf/r/r?   /./(/_T/I/,  if  II 
against   U'illlum   .l/'/.i.'/^/i/V//,  (:•>  / 
•which  decision  was  adopted  by  ifce 
in  by  the  patties,  and  has  since  Lecn  ci-nsidertd  as  the  law. 


OF  MARYLAND. 

TJLGHMAX,  BUCHAN-AX  and  NICHOLSON,  J.  concurred. 
GANTT,  J.  dissented. 

DECKEE    AFFIRMED. 


X  vs.  WALKER'S   EXT.  Leatees    and  Devisees. 


APPEAL  from  a  decree  of  the  Court  of  Chancery.  The  ch.  in.t. ..,,  ,,y,-u 
bill  in  this  case  was  originally  filed  on  the  Gth  of  Augus!  eamj-in  tin  i-uri 
1801,  by  the  testator  of  the  appellees,  in  his  life-time,  and  ;!••»•<>  "wtof* 

J  lot     luai'lnK',     or 

it  stated  that  Brogden*  having  a  claim  against  biro  % ' h^'uor  1°  «M 
£450  0  1 1,  applied  to  him  by  letter  dated  the  27th  of;;";;0'  '^^P;;^' 
August  1 800,  to  secure  the  payment  of  the  debt  by  a  "',',V plvV.1  t'!l« 
mortgage,  and  again,  by  letters  dated  the  30th  of  March  ^l^mbLThan- 
and  26th  of  May  1801;  that  the  complainant,  being  wil-^'""/  ''.'.ci, 'U'ty 
ling  to  secure  the  payment  of  the  debt,  consented  to  give  mlTtakeTffect'te 
.a  deed  of  trust,  or  mortgage  of  his  property,  to  Broaden.  ^^'"n^.i^^ 
•for  that  purpose,  and  by  appointment  met  him  at  the  city  ^eynnce°rofl*SS 
.of  JlnnapoH*  on  the  17th  of  June  1801,  to  make  the  re-  !•"  l%?. , i,?ffd''a,?; 
qui*ite  conveyance,  and  on  that  day  executed  to  Broaden  mti>  court  m 
a  deed  for  tu-o  tracts  of  land,  the  one  called  Row  JJowne,  mp/iie  foilowT"^ 
and  the  otlier  JRoiv  Downe  Security ^  containing  together  and  hrqu'tath  t^ 
S'2,5  acres,  and  also  a  bill  of  sale  of  all  his  slaves  and  per-  a"  my  real  esrat<- 

lluriOff    tier   r.ulu- 

sonal  estate;  but  he  expressly  charged  that  the  same  were  [al  'if<'. antl  a«te> 

her  <!(  cea  e  to  mr 

only  intended  as  a  security  for  the  debt,   and   not  as    an  !" •i'l,'ev  ' ,"'-""! 

Ins  heir*,  la»inliy 

absolute  conveyance  in  fee  ^ilrlple  to  Brogden.      T!  at  the  r'^ot,,"^;  |-",r   '" 


pht-w    -"honlil    die 

]v  f'«.n  he  nnivi's  »o  the  ape  <  f  21.  or  Irnv  11?  issue  lawfully  N-irnttep,  tl.ip,  X,P,  T  W  arr:vi-il  in  Mie 
srf-  of  21  ^fii's.nn:)  (linl  \vilh.-nt  i-<m  —Urlil,  thai  ill'-  fslatc  fail  \vnx  dock.  J  by  tlie  dml  IVi.m  I  w  to 
AV  H,  ahlio'  \V  B  was  dt-clan  d  to  hold  Ihe  LIU!  coi:vi  yfd,  in  trust  {bi-  'I  V  ,  am!  tlio  e  ciauuii  -  umltc 
him 


.--       «*.     I'lovtll    JUJln     ,      I     III**    r*!'"1!!!'^ 

•tanccs  of  the  cas" 

'I  he  reliif  which  may  have  Ix-en  obtained  by  a  complr.ir.int  who  hus  die<!,  niav  be  eian-p,!  to  I  • 
presenlatives  r>  living  the  Miit. 

A  representaiivr,  instituting:  an  origiua!  suit,  may  have  the  same  relief  which,  his  snccstor   dcv  j»r 
testutur,  &c  might  have  had. 

/ 


S50 


v   \ 


\ 


1808. 


iainant,  boinj  HIP  nephew   of  /.'.  .      <d.   at   ilie 

of  executing  the  deed*,  tin- i  ited  confidence 

in  his  honour  and  iufo^iitv,  ami  nut  in  tin-  ira-t  »ii«.|n-ctin!» 

(la-  pmiiv  of  liis  intention-;,  but  on  tin-  contrary  taking  it 

.inted  that  the  con\e\at  deeds  <.|   mm 

'  of  i!,c  dei>t.    pin 

to  the  propositions  of  Jlr<i-t!tn  in  t!>.a:  <•  execut- 

ed   the.  sismc  i\ithoi.  n  until  the   in> 

produced  by   J>n"/iltn  fur  execution.     That   he 
never  rrad  tin*  -  i  vere  they  n-.-ul  to  him,  nor  had 

he  anv  kno\\  leti^e  of  their  contei 

ml.  ami  that  he  executed  them  under  the  fuilot  ronviction 
ihev  \\(  re  only  deeds  of  im  :  ,  to  ~ccurc 

the  j4i.yuiont  of  t!it>  debt,  :s-  Lrogilin  nevfr  r«'(jiiin'd  more, 
and  had   no  title  or  deivai.d  \\h;i-  .  a   r<m\» 

in  fee  simple.     That  the   complainant,    in   Januaiy    1SOI, 

.    and  <<M-    t\<o   yoari 
pre\ious  had  been   in   tl.  n  of  liis    foriunc,  \\hich 

ii  ample  one,    •  -  of  land, 

of  all   kind,   worth   at  a   moderate   estimate   0  or  7< 
That  coming  to  liis  estate  at  an  eaily  period  of  life,  with- 
out the  ordinary  inducements  10  economy,  or  with  re»du- 
tion  to  withstand  the  temptations  of  dissipation  and  extra- 
ice,  !:e  had    indulged  but   too  fiedy   in  the   foil 
.  and  had    been  too  n.'.uh   addicted  tu   drink,    uhicn 
>•  had  often  incapacitated  hi,.  .ness, 

and  cot  (infrequent!  >l  Li:.i  a  dupe  to  the  unpiiu- 

eiplcd  artilicci  of  de»i^nin,u;  i:»en.     Thut   to   hi-,    ntu 
•  rnent,  lie  hud  lately  discovered  t; 

,.ite  conveyances,   in  fee  simple,  to  him,  of  the 

.n  mentioned;  and  that,    i;::,.ir*-cd  v.itii  the 

',(.  e  of  the  ^'in,  he  immediately   ap- 

i  the  subject,  and   rc«|ti«Med  him  to  ha\e  tl.c 

•d,  Avhich    he    well    hoped    he    \\onld    have 

,  in   viola- 
tion of  honour  to  do   it,  and    ti 

i:\ey    the    pcr-oiml 

:  nd  also   •  to  l.im  an    e-tate.  for    life   in 

and,  but  }  -'  d  to  K  lii,(jii>h  hi>   ( I.. 

title  to  the  latter  i:,  .at   if    he  did, 

linant  \\o';!d   >«M.II  it.      Tlut 

•  I,  and  oflVri-d  to  j)'iy  tl: 
.ure  ihe  payment  of  which  the  tleeda  were  eifi» 


OF  MARYLAND.  28? 

cuted,  but  he  wholly  refused  to  take  the  money,  or  to  re-  1808. 
convey  the  property,  saying  lie  had  a  conveyance  for  it, 
and  afl'ected  to  tliink  he  was  entitled  to  it,  contrary  to  the 
avowed  object  of  the  complainant  in  making  the  conveyance, 
the  obvious  dictates  of  justice  and  the  established  laws  of  the 
land.  That  previous  to  the  conveyances,  the  complainant 
had  incurred  debts  to  about  £1000.  which  were  fairly  and 
honestly  due,  but  which  he  was  incapable  to  pay,  as  the 
whole  of  his  property  had  been  conveyed  to  Brogden, 
That  the  complainant's  other  creditors  were  pressing  him 
for  payment;  that  they  suspected  the  conveyances  were 
made  with  the  fraudulent  intention  of  cheating  them  of 
their  honest  claims,  and  have  not  scrupled  to  represent  the 
transaction  as  such,  which,  to  those  unacquainted  with  the 
real  motives  of  the  complainant  in  making  the  conveyances, 
the  circumstances  afford  but  too  much  reason  to  believe} 
but  he  stated  that  the  conveyances  were  made  without  any 
collusion  with  Brogden,  or  the  most  distant  view  of  de- 
jniving  or  defrauding  any  of  his  creditors  of  their  just  de- 
mands, which  he  was  willing  and  desirous  to  pay,  but 
•which  he  never  could  accomplish,  unless  his  property  was 
restored  to  him.  That  his  reputation  had  sustained  a  con- 
siderable shock,  that  he  was  reduced  to  indigence,  and 
could  not  obtain  credit  in  the  country  for  a  farthing.  In 
fine,  that  he  was  a  ruined  man,  unless  he  could  procure 
relief  in  this  court.  Prayer  for  a  discovery,  and  permis- 
sion to  redeem  the  property  intended  to  be  mortgaged,  on 
paying  the  debt,  and  for  a  reconveyance,  and  other  relief, 
£c.  The  answer  stated,  that  William  Brogden,  the  fa- 
ther of  the  defendant,  died  intestate  on  the  1  st  of  November 
1770,  leaving  the  defendant  his  heir  at  law,  by  which  means 
all  the  real  estate  of  his  father  descended  to  the  defendant 
according  to  the  then  existing  laws  of  this  sfato;  but  that 
the  defendant  voluntarily,  on  the  18th  of  May  1775,  exe- 
cuted a  deed  for  the  lands  called  Row  Doivne,  and  Row 
J)ownc  Security,  to  John  Brogden,  the  brother  of  the  de- 
fendant, who  by  his  last  will,  dated  the  6th  of  April  1782, 
devised  the  same  to  his  sister  Elizabeth  Walker,  the  mo- 
ther of  the  complainant,  during  her  natural  life,  and  after 
her  decease,  to  his  nephew  Thomas  William  lYuU;cr,  the 
complainant,  and  to  his  heirs  lawfully  begotten:  but  in  case 
Ins  said  nephew  should  die  before  he  arrived  to  the  r. 
tweuty-one,  or  leaving  issue  lawfully  begotten,  then  tli-e 


CAM>  IN  TI1K  COI   Kl   <>1    AIMM.  \  LS 

real  estate  should  go  to  his  lioir  at  law  U'lllhtm 
the  defendant.  Tliat  the  defendant  had  a  conquerable 
claim  against  the  complainant,  \vlio  was  tin-  sole  ir|  n^i-n- 
laiixp  of  liis  m  ithrr,  amounting  to  .1-1  JO,  to  be  paid  which 
faid  demand,  or  to  satire  which,  tlic  defendant  \\  •.  • 

.  aiu!  he  admitted,  that  for  that  purple   he  wrote    to 
tin-  complainant  the  several  I  !  to.      That  the 

complainant  never  did  consent  to  secure  the  claim  I.. 
of  mortgage,  li'it  after  the  letters  were  written  and  rereh- 
cd,  he  came  to  the  defendant,  and  voluntarily,  and  unsoli- 
cited by  the  defendant,  proposed  to  him  to  give  l.iut  an  ab- 
solute con\ev.i!ice  for  all  his  lands  and  negroes,  the  names 
of  which  he  furnished  the  defendant  with,  stating  it  as  his 
desire  to  convey  all  his  estate,  legal  and  equitable,  to  the 
defendant,  and  assigning  it  as  a  reason,  that  the  estate  had 

originally  conveyed  by  the  defendant  to  his  uncle 
Voluntarily,  and  it  was  proper  that  it  should  go  back  to  the 
•me  person)  and  ;il-otiiat  he,  the  complainant,  was  sur- 
rounded with  designing  people,  \\ho-e  rl'ji-rl  wa«.  to 
Jiim  out  of  his  property :  and  that  a  Mr.  C'luyrt!^  who  held 
r.djoinn;  land,  had  !«aid  that  he  expected  to  <;et  the  laruJ, 
and  intended  to  live  on  it.  The  defendant  thereupon  ap- 
pointed the  complainant  to  meet  him  at  Annapolis,  on  ihe 
17th  of  June  1801.  to  execute  the  conveyances.  The  de- 
fendant employed  liic/iurd  Jtidgely,  esquire,  to  prepare  the 
conveyances,  according  to  the  agreement  and  proposi- 
tion of  the  complainant,  and  I.e  did  accordingly  prepare 
the  two  deeds  referred  to.  That  the  complainant,  agree- 
ably to  his  appointment,  met  at  .tiinupolis  on  the 
tlav  appointed,  qui'  iiid  called  on  J:i.!^ifi/  f;ir  tlie 

deeds,  and  they  were   delivered  to   him.     That   the   com- 
|»lainant  carried  the  deeds  to  the  house  of  J<.i,fs  Mitckitliiii, 

.<,  ;i  j'l-tue  of  the  peace,  and  the  complainant  did 
there  "i^n,  -eal  and  acknowledge,  and  delivered  them  to 
the  defendant.  That  the  complainant  knew  the  objet  t  .f 
the  deeds,  and  they  were  designed  by  him  to  corney  aft 

,te  estate  to    the  defendant.      That   the   deeds    were 
not  intended  or  designed  by  the  complainant  or  defendant 
•iieiit  of  ni.y  MIDI  of  money,  or  to 
be  in  any  manner  conditional,    but  were  intended  and  ile- 

;.  by  both  the  tomplainant  and  defendant,  lobe  . 
lute  and  unqualified  coin  10  the  defendant,    t'f  all 

tale  both  legal  and  equitable,  of  the  complainant,  in 


OF  MARYLAND. 

Ihe  property  mentioned  therein.     The  defendant  denied 
all  fraiul,  &c. 

Testimony  was  taken  under  commissions,  which  it  is 
not  necessary  to  state. 

HANSOV,  Chancellor,  (22d  December  1803.,)  Iti  this 
cause  tlf  complainant  applied  by  his  bill  for  a  reconvey- 
hnce.  The  cause  being  set  down  for  hearing,  the  death 
bf  the  complainant  is  suggested,  and  admitted.  The 
chancellor  is  now  moved  to  proceed  10  a  hearing  and  de- 
cree under  the  act  of  1797,  r/t.  114.  And  the  (question 
Ss,  whether  there  can  be  a  decree  without  further  proceed- 
ings. 

On  considering  the  act  of  assembly,  it  appears  to   the 
chancellor,  that  whenever  he  decrees  in  a  case  where  one 
of  the  parties  is  dead,    it  must  appear  to  him  that  the  de- 
cree may  be  effectual.     In  other  words,  that  he  cannot  de- 
tree  with  propriety  where  one  of  the  parties  is  dead,  un- 
less his  decree  is  to  have  substantial  operation.     In  short, 
it  appears  to  him    that  the  act  is  confined  merely  to  cases 
where  money  is,  by  the  decree^   to  be  paid  or  brought  in, 
or  the  bill  to  be  dismissed  instead  of  money  directed  to  be 
paid  or  brought   in.     Now,   supposing  the   chancellor,  in. 
this  case,  of  opinion,  that  there  ought  to  be  a  reconveyance 
on  paying  or   bringing  in   money — is  it  possible  to  con- 
ceive that  the  decree  is  to  order  money  to  be  brought  in  or 
paid  by  a  person  who  is  not  a  party  to  the  suit,    and  the 
conveyance  to  be  made  to   the  samej   or  another  person, 
who  is  not   a  party  to  the  suit.     Now,   it  is  clear  to  the 
chancellor,  from  a  view  of  the  act,  if  a  decree  takes  place 
under  it,  that  the  decree  must  be  between  the  parties  to 
the  suit.     For  instance,  a  decree  for  relief  in  this  case 
would  direct  the  deceased  to  bring  in  or  pay  money,  and 
the  defendant  to  convey  to  the  deceased.     The  chancellor 
would  suggest^  for  the  consideration  of  the  bar,  the  ques- 
tion, whether  such  a  decree  would   not  be  a  mere  nullity, 
except  that  it  would  show   his  opinion,  and  lay  a  founda- 
tion for  another  suit,  in   which  the   representative  of  the 
deceased  would  be  a  party?     But  a  bill  of  revivor  would 
Certainly  be  preferable  to  a  new  suit. 

The  act  says,  that  the  decree  shall  be  as  effectual  as  if 
the  deceased  were  alive,  except,  &c.  There  is  not  a  tit- 
tle in  the  act  directing  that  the  decree  shall  be  for  or 

against  a  representative  to  the  deceased,  who  was  not  an 
VOL.  ii  27 


CASK*  IN  THE  COURT  OF  APPEALS 

1808  Original  parfv;  but  suppose  it  did  M>  direct,  how  is  th« 
chain cllor  to  know  tlie  representative  \\iihout  further  pro- 
ceedings in  the  c:i<i-e?  N  he  to  art  npon  the  hare  allega- 
tion, or  on  exparte  trs'imoiiN  r  Ami  if  there  are  to  be 
further  proceedings,  *vhat  can  there  be  better  than  a  bill 
of  revivor?  The  meaning  of  the  act  appears  to  be  merely 
confined  to  this — wiicn  one  of  the  parties  to  a  suit  die* 
after  a  submis-ii>n,  or  setting  down  for  hearing,  the  chan- 
cellor may  decree  the  payment  of  m  >r  by,  the 
deceased,  anil  it  shall  give  such  a  claim,  as  is  founded  on 
other  decrees  for  or  against  the  estate  of  the  deceased;  but 
the  claim  shall  not  be  entitled  to  a  preference.  There 
probably  may  be  some  other  cases;  for  instance  a  decree 
for  recording  a  deed,  where  nothing  is  to  be  done  by  the 
deceased  party.  The  more  the  chancellor  reflects,  the 
more  he  is  confirmed  in  the  opinion  he  has  e\|uv--ed,  and 
the  more  he  is  convinced  of  the  impropriety,  and  indeed 
impracticability,  of  the  act  having  an  operation  more  ex- 
tensive than  he  has  mentioned. 

It  does  not  appear  to  the  chancellor  proper  to  examine  a 
cau^e  merely  to  see  whether  he  would  dismiss  the  bill,  unless 
the  cause  be  of  Such  a  nature  that  a  decree  for  relief  might  be 

O 

effectual.  The  death  of  the  complainant  be;  -;od,  a 

Lill  ufrcviror  was  filed  by  hisexecutor  and  residuary  legatees 
and  devisees,  stating  the  former  proceedings,  and  the  h-t 
will  of  H'al/irr,  &c.  to  which  the  defendant  ansu'erc-t:  iu 
which,  among  other  things,  he  stated  that  ll'ulkcr,  the  tes- 
tator, was  never  married,  and  died  without  i>sue:  that  the 
land  and  premises  in  question  \\tre  i  ml  limited 

over  by  the  \\ill  of  Jolm  JJrogilcn  to  the  defendant,  in 
case  ll'nlktr  should  die  before  lie  arrived  to  the  sige  of 
twenty-one,  or  leaving  issue  lawfully  begotten.  That  he 
hath  been  informed,  and  believes,  that  II  vlkcr  hath  made 
t  will  and  testament  in  the  manner  Mated,  but  be- 
lieves the  same  was  obtained  from  him  through  artifice  and 
by  imposition,  ar.d  that  thr<-ame  was  not  executed  bv  him 
at  a  time  \\hen  In-  was  of  sound  and  disposing  mind.  That 
he  should  be  able  to  prove,  by  s<  \eral  respectable  wit- 

..it    //'<///, tr,  shortly   before  his  death,   ex| 
himself    pufectly    sa»i:-iied   \\iih    the  disposition   he  had 
made  of  In*  real  ami  |ei-oi,al    property  to   the  delendaut, 
the  same  being  made  in  conformity  to  hid  intentions. 


OF  MARYLAND. 

The  commission,  by  agreement,  was  opened  for  taking       1808 
further    testimony;     further     testimony    was    accordingly 
taken,  and  returned,  which  it  is  also  unnecessary  to  state. 

It  was  admitted  that  the  defendant  is  the  lu-ir  at  law  of 
John  Jlrogden,  and  that  Rebecca  Finkney,  one  of  the  com- 
plainants, was  the  half  and  only  sister  of  W~u!kery  and 
that  he  had  no  brothers  or  children. 

HANSON-,  Chancellor,  (February  Term,  1805.)  This  is 
a  case  of  a  most  delicate  nature,  in  which  the  chancellor 
earnestly  wished  a  compromise  to  take  place.  On  this  ac- 
count it  is  that  he  has  delayed  his  decision.  He.  must  now 
proceed  to  the  performance  of  his  duty,  in  giving,  such  a 
decree  as  he  deems  consistent  with,  and  required  by,  thp. 
established  principles  of  equity. 

The  complainants  pray  relief  on  several  different 
grounds — 

1.  They  say  the  defendant  committed  a  fraud  in  pro- 
curing Walker's  execution  and  acknowledgment  of  deeds 
variant  from  those  he  had  agreed  to  execute. 

2.  They  say  that  if  even  Walker  was  apprised   of  the 
contents  of  the  deeds,  they  ought  to  be  either  vacated   or 
controled.  on  account  of  the  defendant's  having  practised 
on  an  ignorant,  imbecile,  intemperate  young  man. 

5.  They  contend,  that  if  both  these  grounds  should  fail, 
and  supposing  the  deeds  to  be,  as  they  purport  to  be,  deeds 
of  real  bargain  and  sale,  the  vast  inadequacy  of  price, 
(£250  current  money,  the  consideration  mentioned  in  each 
of  the  deeds,)  coupled  with  the  suspicious  circumstances 
disclosed  by  the  evidence,  ought  to  be  considered  as  a 
foundation  for  setting  them  aside,  or  granting  the  com.-* 
plainants  some  other  substantial  relief. 

It  is  proper  for  the  chancellor,  before  he  proceeds  to  a 
final  decision,  to  remark  on  t\vo  points  made  on  the  part 
of  the  defendant. 

It  is  contended,  that  Walker  was  a  tenant  in  tail;  that  as 
he  died  without  issue,  and  as  Brogdcn  was  the  reversioner 
in  fee,  the  land  must  belong  to  Broaden,  unless  it  can  be 
shown  that  the  entail  was  cut  off.  And  that  if  the  deed 
from  Walker  to  Br.ogdfff^  for  conveying  the  real  estate,  be 
vacated,  it  cannot  possibly  be  considered  as  having  the 
operation  of  converting  Walker's  fee  tail  into  a  fee  simple 
in  Brogden,  or  that,  if  it  has  that  operation,  the  fee  mu=t 
remain  in  Broaden  to  his  own  use. 


893  CASK.?  IN  THE  COURT  OF  APPEALS 

1808  The  defendants  iotni-c|  lias  ;ilsn  in»i-'e<!  on  that  e«tab- 

li»!>eil  \\.-ll  known  principle  in  rhanriTV,  re^-et  liny;  (he 
'  of  an  answer,  \\hich  the  defendant  has  been  com- 
pelled to  make  on  oath.  It  is  true  th;it  tlu-  defendant  lias 
in  his  answer  expressly  denied  all  fraud  and  imposition 
wherewith  he  is  charged,  and  that  there  is  not  a  single 
witness  to  refute  his  answer. 

As  to  the  first  point,  the  chancellor  has  not  the  least 
doubt,  that  if  even  // (tlkcr  had  only  an  estate  tail,  (which 
lie  i-  satisfied  was  not  the  case.)  the  said  i  -  com- 

pletely destroyed  by  the  deed  executed  to  Broaden,  and 
that  Brogden,  under  the  deed,  was  to  hold  the  land,  either 
to  his  owq  sole  use,  or  in  trust  or  by  way  of  pledge  or 
security. 

As  to  the  other  point,  the  chancellor  conceives,  as  on 
other  occasions  he  has  declared,  that  frnvd  is  not  to  he 
considered  a»  a  single  fact,  bvt  a  conclusion  lo  l-t  drawn 
from  all  the  circumstances  in  ihe  cate.  It  i*  certain,  that 
although  the  defendant  has  generally  denied  fiand.  he 
has  depied  but  few  of  the  matters  charged  in  tlie  bill. 

But  the  chancellor  does  not  consider  bin-self  under  the 
disagreeable  necessity  of  deciding,  whether  or  not  there 
vas  fraud  in  obtaining  the  deeds.  He  views  the  di 
executed  by  a  weak  young  man,  conscious  of  his  inability 
lo  protect  his  property,  or  to  manage  his  own  concerns, 
and  therefore  resolving  to  place  himself  under  the  guidance 
and  protection  of  an  able  and  affectionate  relation.  If  it 
could  be  imagined  that  he  meant  to  ct>n\ey  every  part  of 
his  ample  property  for  the  benefit  of  that  kinsman  only, 
and  to  be  absolutely  dependent  on  him  for  Mjh.-i-ienre.  he 
roust  be  deemed  very  little  superior  to  an  ideot.  \Vere  he 
alive,  and  in  the  place  of  the  present  complainants,  who 
\s  there  that  would  not  declare  it  the  duty  of  this  tribunal 
to  save  him  from  the  wretched  consequences  of  an  act  pro- 
ceeding from  madness,  folly,  or  habitual  ebriety,  &r. 

Supposing  the  intent  of  the  deeds  to  have  been  that  HV/7 
far  should  retain  his  OVID  property  during  life,  and  that  af- 
terwards his  uncle  should  have  an  absolute  fee,  how  difle- 
rent  would  deeds,  properly  prepared  for  that  purpose,  have 
been  from  the  deeds  executed  by  U'ulktr.  How  (iifl'orcnt 
too,  the  chancellor  must  say.  would  have  been  the  circum- 
stances  attending  the  execution  and  acknowledgment.  The 
te»t  ami  fairest  construction  i=,  that  the  deeds  were  inteaaV 


OF  MARYLAND. 

ed  to,  secure  to  Jlrogden  a  debt,   which  although  greater        1P08. 
than  n«/Acr  might  have  aclmitteil,  was  trifling  in  compari-       ^->^^o 
son  of  the  value  of  the  property  conveyed,  and  to  put  it  out 
of  the  power  of  the  grantor  to  squander  his  estate,  and  be- 
come a  prey  to  designing  men.     Here  then  was  a  resulting 
trust,  op  here  there  was  an  equity  of  redemption,  or  here 
•was  a  silly,  intemperate   young  man,   who  really  did  not 
know  what  he  was  about,  and  who  therefore,  ought  to  have 
the  protection  of  a  tribunal,  whose  peculiar   duty    it  is  to 
•watch  over  ideots.  lunatics,  madmen  and  fools. 

The  defendant  having  originally  conveyed  the  land  to  his 
brother,  front  whom  Walker  derived  it,  most  probably 
thought  it  justifiable  for  him  iq  secure  a  return  of  it  as  boon, 
as  the  miserable  da v*  of  Walker,  should  be  ended.  Let  it 
be  supposed  that  IVnlkcr  was  actually  apprised  of  the  pur- 
port of  the  deeds  prepared  by  Rrogdcii's  attorney,  as  ia 
contended  by  Broaden — what  man  of  intelligence  is  there, 
that  will  not  «ay  that  it  was  sufficient  for  him  to  have  an 
ample  security  for  his  debt,  and  to  screen  his  nephew  from 
all  imposition  which  might  be  attempted  by  others?  Who 
is  there  that  would  say  if  Walker  was  of  sound  disposing 
tnind  when  he  made  his  will,  that  his  will  ought  not  to  pre- 
vail? And  if  he  was  not  of  sound  disposing  mind,  why 
•was  not  his  will  contested? 

It  has  been  urged,  on  the  part  of  the  defendant,  that  tho 
complainants  are  not  creditors;  that  is  to  say,  it  is  supposed, 
that  not  having  paid  a  valuable  consideration  for  Walker's' 
property,  they  have  no  claim  which  ought  to  be  regarded 
by  this  court  against  the  legal  title  vested  in  Brogdcn  bv 
the  deeds}.  No!  if  Walker,  during  his  life,  was  ontitlcd  to 
relief,  his  representatives,  on  every  sound  principle,  are 
also  entitled.  When  has  it  ever  been  decided,  by  this  or 
any  other  tribunal,  that  relief,  which  might  have  been  ob- 
tained by  a  complainant  who  has  died,  shall  not  be  grant- 
ed to  his  representatives,  reviving  the  suit?  Or,  even  that 
a  representative  instituting  an  original  suit,  shall  not  have 
the  same  relief  which  would  have  been  granted  to  his  an- 
cestor, devisor,  testator,  &c. 

The  chancellor  repeats,  that  the  decree  he  is  about  to 
make  is  not  grounded  on  a  conviction  that  fraud  was  per- 
petrated by  the  defendant.  He  is  clearly  of  opinion,  that 
the  complainants  are  entitled  to  a  decree  in  their  favour  on 
pther  substantial  grounds.  Decreed,  that  if  the  executor 


294  rm:  CWRT  or  APPEALS 

1Sn,9.          complainant,  shall  brin^  into  con  if   on  or  hoforc.  \r.  to  be 
.i  10  the  defendant,  the  .  \\ith  interot  In  n\ 

the  irth  el"  .lure  1801.  tl-o  defendant.  !iy  a  L":od  deed,  ac- 
kmmiedued  ;nii!  recorded  according  to  laxv,  shall   mir. 

to  tin*  executor  complainant,   all    the    nrirroi-s.  &c. 
And  if  (he  i!.  ..mplainai'1   .  -hall 

on  or  before,  &r.  brine;  into  court  the  like  Mini  c;f  J'250, 
with  interest  aid,  to  be  pa'ni  aid,  1he  de- 

fendant,  by  a  coed    dm'.   &c.  shai'.  •  ;-nf,  &r.  unlo 

the  devisees  complainants,  and  their  heirs,  as  tenants  in 
common,  to  have  and  to  hold  tn  them,  and  their  h^irs,  to 
Ihe  use  or  uses  mentioned  in  the  last  -nil]  ofthe  said  II  alkrt\ 
llic  land,  on  the  ?;iid  17th  of  J'me,  Kc(il  by  tin-  said  ff'ulf.rr 
conveyed  unto  the  sai-1  /•',•'•;.•••.'.•//,  bfin;^  } 'arts  of  luo  tracts, 
&c.  Uut  if  the  said  complainants  shall  fail  to  !•:  in::  into 
this  cov.rt  the  money  hen-by  direited  to  :  ',t  in  on 

or  before,  &c.  tliere  sliali  be  sold,  for  (lie  payment  to  the 
ilefendant  of  the  said  l\vo  sum-;  amountii.  i  .  uitfi 

.  &c.  S(»  inurl;  of  tli"  afi!je-aid  |;«'r.>o!];i!  niul 

lantl  as  shall  be  neces-ary:  the  personal  property  bein-;  first 
to  be  sold.  And  N.  li.  is  hereby  appointed  trustee  for 
ino;  (lie  said  sale;  and  the  course  and  manner  (if  his 
proceeding  shall  be  as  follows,  £.c.  The  Uefcnclant  ap- 
pealcil  to  this  court. 

led  before  POLK,  BUCHANAN,  NICHOL- 

. 

'    'tf1ff  and   Tanty.    for  the  Appellant, 
con  !.    That  tlie  bill  is  no  evidence  in  •  •:  it 

iy  in    the  language   (.f  counsel, 

i  lO. 

•iirs  exprrs'ly  all  fraud;  and   there  is 
.  proof  against  the  denial  of  fi  and  in  the  an«.\\er,  as. 
;;u:  law  and  usavre  of  tin-  court  of  chancery  entitles  the 
ap;  :-s.  Il'ul'ilml,  '-  Chun.  (*a.  8. 

Company  of  i  rs.  (iorcrnor  of  ("/;/•;.</'«  //otjiitul, 

I   J'ern.    1G1.      tl'dl.'ni  r».   //:•////*,  2  .'///,-.   H 
J/«r/in,  2  Com.  /.  Hubinaon  vs.  Cumin:;,  1  .///.. 

:  ..n.l  .1/c/i  r.v.  U'urd,  '1.1 1 1,: 

5.   NH  v.  i:  iii'-s  is  sworn  on  the  part  of  the  appellees  who 
gn<  x-»U  competent  testimony;  and    neither   fraud 

uor  iiaj.oaiuoa  is  proved  by  any  le^al  competent  tcsiimony — 


OF  MARYLAND. 

the  whole  being  hearsay  or  declarations  of  H  alker  him-         1808. 
self. 

4.  The  deeds  of  conveyance   transfer  not  only  a  legal, 
but  an  equitable  estate  to  the  appellant,  not  impeaciiable  in 
a  court  of  conscience,    and  wore  fairly  obtained  on  a  pro- 
per and  good  consideration.    J'i'/ers  vs.  Beaumont,  1  Vern. 
101;  and  The  King  vs.  The,  InJtubitanls  of  Scummonden, 
3  T.  R.  474. 

5.  If  the  deeds  are  declared  null  and   void,  as  unduly 
obtained,  yet  the  appellees  should  not  have  a  decree  for 
the  real  estate,  as  in  such  case  it  is   entailed  proper •/?/,  not 
devisable  to  the  appellees  by  will,  and   boloiigs  to  the  ap- 
pellant as  heir  at  law  and  remainder-man. 

Martin,  Johnson  (Attorney -General,)  and  T.  Buchanan, 
for  the  Appellees,  cited  Clarhson  vs.  Ha,iway,  2  P.  Wins. 
203.  hca/hcolcvs.  Paignon,  2  Bro.  Chun.  Ca.  167.  >ftrd- 
glass  vs.  Muschamp,  1  Vern.  237.  Bennet  vs.  Fade,  2 
JllLSZT.  Chesterfield  vs.  Janssen,  2  Ves.  125,  155.  Excl 
vs.  Wallace,  Ibid  524.  Uridgman  vs.  Green,  Ibid  G27. 
2  Pow.  on  Cont.  144,  145,  152  to  I  GO.  Osmond  vs.  Fitz- 
roy,  3  P.  ft  ins.  129.  Cole  vs.  Gibbons,  Ibid  ^Q.  Chew's 
Lessee  vs.  Wcems,  (ante  173,  note;)  and  Frazler"s  case, 
cited  in  Owiiigs  cs.  Reynolds,  el  at.  at  December  term,  1810. 

UKCHEE  AFFIRMED. 


DAVIS'S  Lessee  vs.  DAVIS'S  Heirs.  JUNE. 

APPEAL  from  a  judgment  of  the  General  Court,  render-   _}vll<;rt'  "><•  <;»«'« 

J       '-  K.fferediaeviilrnca 

ed  in  an  action  of  ejectment  brought  by  the  appellant.  b>'  u'°   i';"'"''* 

•  \vcrc  i, <it  raffieimt 

The  declaration   contained  a  ileigise   for  a  tract  of  land  |"'d  1'R:llM',t!l'".c<i 

lo  warrant  the  .ju- 

called   Brcwerton,   containing  400  acres,  and   one  for  a  !7  '.Ir1",1'""  *'!** 

a      (Hri  M»II,      tilulrr 

tract  called  Linhanrs  Search,  containing  G8  acres,  both  "%™ 'J^^f 
lying  in  Jinne-Jlrundd  county.  There  was  also  a  demise  « Lidi "ih^" j,^ 
for  an  undivided  moiety  of  the  same  land.*,  omitting  the  inV.pimluimMoeo 
quantity  of  acres  contained  in  each  tract.  The  defen-  \\\ '•' '!M; l.daVit— 

...  „  A.  ..  ,    ,  ,     .    r  Tliestnmpp'.t  pre- 

dant,  (tlie  ancestor  ot  the  appellees,)  took  general  defence  sumption ufaRWHi 
and  issue  was  joined.  The  plaintifi',  at  the  tiial  at  May  »»ur  of" 'the"  do 

.  J    iciiilata 

term  1805,  read  in  evidence  a  grant  dated  the  7th  of 
tember  I65y,  to  John  Brewer,  for  a   tract   of  land   called 
£rewcrton,  fcnncily  surveyed  for  William  Pythc;-,  lying 


C  \P-RS  IN  THE  COURT  OF  APPK  M.S 

1808         on  -ide  of  Chnnpeake  biy,    on  tlie  •  nf 

"•"•*"-•'       the  South  river;  &c.  containing  250  acres.     He.  aUu 

certain  entrie->  f r  ->  n  fhr  rent  roll*;  l>v  o-i  •    of  them  it    ap- 

Dtvtt 

peared  that  a  tract  <>f  land  called  rylfarton*  wa-.  surv, 
on  the  20th  of  Jim?'  Ki.iJ,  for  ll'i'  '  /,;  /'i/lher,  Ivin-j;  on 
the  west  side  of  South  river,  contain!!?1:  £."5M  aires,  and 
that  it  was  in  the  possession  of  Jam?*  AW/ru/tY.*,  fur  /'«r- 
m///*s  orphans.  By  another  entry  it  appeared,  that  the 
tract  called  Pytherton,  surveyed  as  above  mentioned,  wa< 
Mited  to  John  /irocrr  on  the  7th  of  September  165H, 
and  called  Ilretcerton,  an«l  that  it  \va*  in  the  |»u«..-^-.i-in  of 
Itufjfrt  J)tir>s.  By  another  entry  it  was  stated,  that  the 
iract  called  Brettrrton  «as  resurveyed  on  the  9tli  of  No- 
tember  1T04,  for  Joseph  /hewer,  and  contained  4f>0 
acres,  and  that  the  following  al'n-nations  had  taken  place, 
vir.  "^50  acres.  Robert  Duri*  from  If'il/iain  Dnris  and 
/'rarock,  12th  of  September,  1T44.  100  aero-. 

;  and   wife   from   John    Gresham, 

June  1T44.  1(K)  acres.  ./c/j»i  //(/;»«  from  Joseph  Jf'il- 
S  12tli  of  January  1747.  130  acres.  Jan: ,-v  .V/r- 
tubbin  from  FenlinanJo  Brewer,  12th  of  October  1747." 
He  also  read  the  grant  for  Liiihuni't  Suirch,  issued  to 
Jw/uj  Linhum  on  the  12th  of  June  1G8S,  and  containing 
58  acres.  Also  a  deed  from  ft  illimn  Peacock  and  If'il- 
liftrn  Davit  to  Itobcrt  Davis,  dated  the  ICth  of  Sep- 
tember 1744,  for  Rrnrrrfon  and  Linhum' s  Search. — 
Tie  then  proved  by  John  ff'elc/i^  aged  7'"'  yrar>,  (hut  when 
he  the  witness  was  a  boy  in  the  year  1738,  he  \\a^ 
at  the  house  of  Robert  Davis,  who  was  then  married  to  the 
defendant  (a),  and  lived  upon  and  possessed  the  lands  for 
which  ti.is  suit  is  brought:  that  Daris  always,  afier  his 
marriage  with  the  defendant,  and  until  his  death,  lived  <m 
the  land  and  po^-essi'd  the  same,  and  after  his  death  his 
v. if.1,  tin-  (ii-fi-ndant,  lived  upon  and  posse-sed  the  same 
down  to  this  time,  and  si  ill  does.  That  he  never  kne\\  or 
heard  that  any  person,  except  Rohrrt  Davis  and  \i\^  wife, 
possessed  the  land,  or  any  part  of  it.  from  the  year  1738 
down  to  Jhis  tiiue.  That  Snnih  //V/r/.v,  the  defendant,  had 
two  »i-,ters  who,  together  with  Xurah,  were  the  daughters 
of  Dnnifl  Paint:  Sarah  wa«  the  elde-t.  jnani.-!  t..  /,'  >hcrt 
a-  abuvi-:  J  .  :'ie  second,  married  It  iHitnn 

Peacock,  who  lived  with  her  some  yearr,  and  died   I 

fnj  She  afterward*  died,  and  her  heirs  were  made  parties. 


OF  MARYLAND.  £97 

lie;1  a  widow;  that  she  remained  a  widow  two  or  three  1808 
years  and  married  the  deponent's  brother,  with  whom  she 
lived  two  or  three  years,  a»id  died  about  the  year  1750  or 
1751,  without  issue.  That  Elizabeth,  the  third  daughter, 
remained  single  several  years  afiorhe  first  knew  the  family 
in  1738,  afterwards  man-led  William  Davis,  brother  of 
the  above  mentioned  Robert  DaviS,  by  whom  she  had  four 
children,  one  of  them,  the  eldest,  father  of  the  lessor  of 
the  plaintiff  in  this  cause;  that  she  died  before  her  hus- 
band, but  when  he  does  not  recollect.  That  he  knew 
nothing  of  the  title  under  which  Robert  Davis  and  hi$ 
wife,  the  defendant,  held  the  lands  for  which  this  suit  is 
brought,  but  he  had  often  heard  that  Sarah  Davis,  and  her 
husband,  lived  on  her  father's  plantation,  and  when  Fran- 
ces above  named,  died,  she  expressed  a  wish  to  be  buried 
alongside  of  her  father,  and  was  carried  to  Robert  Davis' a 
plantation,  the  lands  for  which  this  suit  is  brought,  and 
there  buried;  that  Frances  Peacock,  above  named,  when 
she  married  the  brother  of  the  deponent,  was  more  than 
twenty-one  years  of  age.  The  plaintiff  then  offered  in 
evidence,  by  cross  examining  William  Brewer,  a  witness 
produced  and  sworn  by  the  defendant,  that  he  the  witness 
was  aged  about  73  years;  that  he  had  been  acquainted 
with  the  three  daughters  of  Dailiel  Paine  above  named, 

O  .  ' 

ever  since  he  was  six  years  old;  that  Paine  had  two  other 
daughters,  Priscilla,  who  married  and  left  no  issue  now 
living,  the  other  Jinn  who  died  young  and  unmarried. 
That  he  understood  Elizabeth  was  the  youngest  of  the 
five  daughters;  that  he  had  often  heard  his  father  say,  that 
Dimid  Paine  was  an  Englishman,  who  got  the  land  in 
question  by  his  wife;  that  the  four  daughters  were  co-heirs, 
and- got  the  larid  by  inheritance  from  their  mother;  that  he 
understood  that  Frances  and  Elizabeth  lived  in  Culvert 
county  with  a  Mrs.  Wilherson,  a  relation,  till  Sarah  Da- 
vis, her  sister,  married,  when  that  happened  he  frequently 
saw  Elizabeth  the  youngest  sister  at  Robert  Davis*  s,  who 
lived  upon  the  land,  and  believes  she  lived  sometimes  with 
her  sister  Davis,  and  sometimes  with  h.-r  sister  Peacock, 
till  she  Elizabeth  married  William  Davis.  The  plaintiff 
then  read  certain  entries  from  the  parish  registers  for 
All  Hallows  Parish,  viz.  *•*  Mary,  the  daughter  of  James, 
and  Sary  Parnall  his  wife,  was  born  the  9th  day  of  April 
1697,  in  the  parish  of  All  Hallows,  and  baptized  the  25th 
VOL.  ii.  8 


CASKS  T:>  THE  COUKT  OF  APPE A  » 

1808         day   of   July   1G98.     Pritcilla,  daughter  of    /)i>>uV  and 

Pttnr.  \\ns  born  Juno  1,  1714.  -fl/r/n/,  daughtr: 
Daniel  and  Mary  Pane,  was  born  July  29,  1717.  Sarah, 
daughter  of  Dante!  ami  Mary  Punr,  was  born  May  24, 
1720.  Frances,  daughter  of  Dunn  I  and  Mary  Paif 
born  Augu-t  21,  17-2-2."  Tin*  plaintifl'  al>o  |.;oved,  tliat 
the  lands  in  question  are  situated  in  All  IIuU<.>irs  Parish. 
Hi-  ;ilso  proved  that  Elizabeth,  above  named,  who  married 
Jniltam  Din-is,  died  about  1-2  or  14  years  a*o,  k'a\in^ 
four  children,  Daniel  her  eldest  son,  ff'illiam,  Robert  and 
J\far\/;  that  II  illiam  Damn,  her  husband,  died  soon  after, 
about  10  nr  12  years  ago?  that  Daniel,  the  son,  died  in  the 
life-time  of  his  father,  leaving  seven  children,  now  alive,  of 
which  the  lessor  of  the  plaintiff  is  the  eldest.  The  defen- 
dant then  read  to  the  court  a  patent  granted  to  John 
Jhewer  on  the  16th  of  February  1659,  for  400  acres  of 
land,  called  "Itrcrccrstori,  lying  on  the  west  side  of 
Chesapeake  bay,  and  on  the  west  side  of  a  river  in  the 
said  bay.  called  Road  River,"  &c.  She  also  read  to  the 
court  a  patent  to  Joxfph  Brewer  for  460  acres  of  land, 
culled  Bnu-erston,  dated  the  20th  of  March  1710.  ThU 
was  a  re?urvcy  of  the  last  above  mentioned  tract,  devised 
by  Juhn  Brewer  to  his  two  son?,  //  illiain  and  John;  that. 
John,  the  son,  devised  to  Joseph  his  son.  She  also  read 
an  entry  in  the  rent  rolls  concerning  the  said  land:-. 
*' Brewerston^  patented  to  John  Brewer  the  IGth  da\  (.1 
February  1659,  lying  in  4fe)M-jfran4M  cotinty,  on  the 
^ide  of  Road  Hiver,  and  containing  400  acres.  On  the 
C(»th  of  Marth  1710,  a  patent  issued  to  Joacjih  JJicwerfm 
260  acres  of  land,  lying  in  June  Animlcl  county,  be  inn  * 
tasurvey  on  one  moiety  of  a  tract  called  Brtwcmlon,  origi- 
nally granted  to  John  Brewer  for  400  acres."  She  then 
produced  a  witm-s.  //  i Ilium  lire ivcr,  ayed  about  73  year*, 
who  being  duly  sworn,  deposed,  in  addition  to  what  ha« 
been  before  slated,  that  ever  since  he  was  six  ^<.u>  «>ld  lie 
A'. a-  well  acquainted  with  Robert  Darin,  and  his  \\ifc  the 
defendant;  that  when  he  fn>t  knew  them  they  lived  upon 
the  lands  for  which  thi*  suit  is  brought,  and  after  the  mar- 
rjage  of  Jt'il/iatn  Dm-ii  and  Elizabeth  Paine,  before  stat- 
<M!,  they,  Rubert  Davin,  and  -wrah  his  \\ilV,  and  no  other 
person  whatever,  possessed  the  san^,  and  that  they  con- 
tinued so  to  possess  the  lands  ever  after,  until  Robert  Da- 
vit died,  and  that  after  he  died,  his  wife,  the  defendant, 


OF  MARYLAND.'  209 

•continued  to  do  so  till  this  time,  and  now  does,  and  that  1808 
jie  the  witness  had  lived  all  his  life,  and  still  lives,  ad-  ^J^0 
joining  the  lands  for  which  this  suit  is  brought.  The 
plaintiff  then  prayed  the  opinion  of  the  cburt,  and  their 
direction  to  the  jury,  that  if  they  are  of  opinion  from  the 
evidence,  that  Daniel  Payne  and  Mary  Payne  died  seized 
of  the  lands  mentioned  in  the  declaration,  and  find  the 
facts  stated  by  the  plaintift'  to  be  true,  yet  although  they 
should  also  be  of  opinion  that  the  facts  stated  by  the  de- 
fendant are  true,  the  pjaintilY  is  entitled  to  recover  an  un- 
divided interest  in  the  lanijs  in  the  declaration  mentioned. 

Key  and  Johnson,  for  the  Plaintiff. 

Mason,  for  the  Defendant,  cited  Esp.  459,  and  GHb< 
L.  E.  103,  104. 

CHASE,  Ch.  J.  The  facts  and  circumstances  disclosed 
in  evidence  are  not  sufficient  for  the  jury  to  presume  a  ti- 
tle in  the  heirs  of  Parndl,  or  a  deed  to  Parndl,  against  the 
defendant,  with  sixty  years  possession.  The  entries  on 
the  rent  roll,  should  show  a  correspondent  title.  The 
strongest  presumption  in  this  case,  of  a  good  title,  is  in 
favour  of  the  defendant. 

The  court  are  of-  opinion,  that  the  facts  stated  by  the 
plaintift',  although  the  jury  should  find  them  to  be  true, are 
not  sufficient  and  legal  evidence  to  warrant  the  jury  in 
finding  that  Daniel  Payne  and  Mary  Payne  were  seized  of 
the  lands,  and  died  seized  thereof,  in  opposition  t0  the 
facts  stated  by  the  defendant,  if  the  jury  should  find 
them  to  be  true.  The  court  therefore  refuse  to  give  the 
direction  prayed.  The  plaintift'  exceptedj  and  the  ver- 
dict and  judgment  being  for  the  defendant,  the  plaintiff 
appealed  to  this  court. 

At  a  former  term  the  death  of  Sarah  Davis,  the  then 
appellee,  was  suggested,  and  her  heirs,  the  now  appellees^ 
were  peimitted  to  appear,  &c. 

The  cause  was  argued  before  TILGHMAX,  BUCHANAN^ 
NICHOLSON,  and  GANTT,  J.  by 

Johnson,  (Attorney-General,)  for  the  Appellant;  and  by 
Martin,  Ridgdy  and  T.  Buchanan,  for  the  Appellees, 

JUDGMENT  AFFIRMED. 


rtcorer 


CASKS  IN  TIlKConti 

LEVERING  vs.  BOND'S  Adm'r. 

ArPK.u.  from  the  Cu-nenl  Court.      Tin-   \v.s   an    n 
of  Tm\  •  the  appellee.     The  plaintiff,  at  • 

trial  at  Mav  term.  1H>\    read    in   evidence  a  rrcfi/il   fniui 
tr.."""  1%"°"  r"n  the   defendant,   and    one    Lnnmon.   since    <!ere;i-,-<I.    and 
»•  whom  the  defendant  h..s  survived.    in  the  following  v. 

«t»nu    on    »tor»|f, 

mut  >,tuvii  ihM   <-  "/iailimnrc,  C7th  Nov.     Received  irom  Mr. 

tut.  il     i        •'•    IT  r, 

but  ruiifiiiu  r--,'i)Tj,    fur   account  of  Mr.  M'iUlnm  -V.  Bond,  eleven  1m  n- 

tuin  it  lor  th<   p»v- 

.  »  «u-v  due  jrc(j  an(j  thirty  bushcle  of  corn. 

to  them   frum    the  J 

M'M^  m°n  *v  7 

rt"rrJ"«a.thi  .«  •  M-      He  also   jjave  in  evidence,  by    the   testimony  of 
i.1",  '\SpetIding.   the   person   by   \\liomtliccorn   in   the  receipt 

u.p'i'ii'1''"''1)'"!"-'"  mentioned  was  deliven-d.  that  tl\e  delivery  \\as   made   the 
i  of  Xnveinber   1708,  that  the  corn    \\as    tl.c    properly 
J'r""«il»  H.I.'.I  ni  of  IViHiam  S.  Ilond,  the  plaimin''s  intestate,  by  uhom   it 

«  Hi  «utim,.-  was  delivered  to  the  witnes-.  to  be  sold  for  the  ,<l; 

\i  10  M-;I  Hi.-     ML  , 
«i,.-    |.  fi.  ntr  «a»  but  without  any  orders  or  authority  to  place  it  in  tl 

lii   o    tr 

of  any  other  person   tVr  sale,  in  case  he  could  m  : 
of  it  hhnsejf.     That  not  being  able  to  sell   the   corn,   l.c 
placed  it  in   the  warehouse  of  Lcmmon  $•  Levering,  \\!,o 
were  in  the  habit   of  receiving  produce    on  .    !>ut 

wade  no  particular  agreement  with  them  relative  to  ti;e 
amount  ».f  storace  to  be  paid,  and  pave  them  no  orders  or 
authority  to  sell  or  dispose  of  the  corn.  lie  also  ^ave  in 
e\idence.  tl,at  \\ithin  a  few  day-;  after  the  date  of  the  re- 
ceipt, ami  sc  me  tiire  in  tl.e  month  of  November  or  De- 
cember 1798,  Pond  st  nt  a  person  to  demand  the  corn 
from  Lfminnn  <$•  Lererins:,  in  his  name,  \\ho  made  the  de- 
mand accordingly,  and  informed  J.nnmon  •$•  f.rvcring  that 
he  was  ready  to  pay  the  sto;a^c.  a-  -OMI  as  the  corn  should 
be  delivered.  But  that  Lemmon  $-  Levering  rr|:iM(l  (o 
deliver  it,  declaring  that  they  would  retain  il  for  the  ; 
in«-nt  of  a  debt  due  them  by  7>V,m/.  The  defendant  < 
read  in  evidence  an  account,  which  was  admitted  in  evi- 
dence by  (lie  plaintiff,  for  sundry  articles  sold  and  de- 
livered by  Lernmon  fy  L<>  fttnnl  and  one  .7,Vs.  in 

vh'uh  account  the  corn  is  cirilitetl,     nd    leaxiti"-  a  l);ilance 

O 

due    from    Hand    k    ,-?ir#,    to   Lmnr.cn  $•   /  .    of 

£13  9  S.  He  a!>o  «;ave  in  evidence.  t!ia»  .7/r.»,  in  the  ac- 
rouni  mentioned,  had  departed  (his  life  before  l!  e  lime  of 
delivering  thn  r«  in,  and  that  ttoml  was  Mien  indebted  to 
Ixmmon  4-  Levering  in  the  sum  ot  l'J17  13-4,  as  by  tha 


OF  MARYLAND.  SO 4 

account  stated.  The  defendant  then  prayed  the  opinion  1808. 
of  the  court,  and  their  direction  to  the  jury,  that  if  they 
shall  be  of  opinion,  from  the  evidence,  and  all  the  circum- 
stances in  proof,  that  the  corn  was  delivered  to  Lemmon 
<V  /.-  vering,  to  be  applied  by  them  to  the  credit  of  />'o/;?/, 
on  account  of  the  debt  due  from  him  to  them,  or  was 
placed  in  their  hands  with  authority  to  sell  it  as  factors, 
that  then,  in  either  of  the  said  cases,  the  plaintiff  is  not 
entitled  to  recover. 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  there  is 
no  legal  evidence,  from  which  the  jury  can  find  that  the 
corn  was  delivered  to  Lemmon  <$*  Levering  to  be  applied 
by  them  on  account  of  JJond  to  the  discharge  of  the  debt 
due  from  him  to  them,  or  was  placed  in  their  hands  as 
factors  with  authority  to  soil  tin*  same.  The  court  there- 
fore refuse  to  give  the  direction  prayed.  The  defendant 
exrepted;  and  the  verdict  and  judgment  being  for  the  plain- 
till',  the  defendant  appealed  to  this  court. 

The  case  was  argued  before  TILGIIMAN,  BUCHANAN, 
NICHOLSON  and  GAXTT,  J.  by 

Harper,  for  the, .Appellant;  and  by 
and  AVy,  for  the  Appellee. 

JUDGMENT    AFFIRMED. 


HOPKINS  vs.  STUMP,  et  al.  JUNK 

APPEAL  from  a  decree  of  the  Court  of  Chancery,  (Us-  beTn'efpMMn 'lii* 
•missing  the  bill  of  complaint.  The  bill  filed  in  1790  ^XV^hicii't^iZ 
charges,  among  other  things,  that  the  defendants,  Slump  a^'timwf^m'i 

the  hill  afterwards 
dismissed    Ly    (be 

romplniniint,  who  filed  a  tirw  bill  spniji't  the  sr-.t^o  d<  f -nfanf'  'o  lOi'-nn  1  IT  same  ri-.ict'  for  which 
i!i<-  tiinnrr  lii'l  lu'.il  It  i  n  fi  '•(!—"!  '!•'•  i  «  Ml'.rn  '>!  iiK"  i!i-f>  i.<!:'i  t,  ,'  !•'<!  '  y  Unjitca,  t IK-I  cciicr,  tin:  I  I  he 
UMiniony  so  '!>krn  in  Oit  furnifr  suit  hr  UTCIM  i!  »1  '1  r<-a(!  in  evi-.leace  n  t!ic  n<  \v  suit 

T'n ciuat  of  chancery  will  not  tnforee  a  «pe«ulRting.«<Urtract  lor  continental  nioiuy.  1'cr  Han- 
son, C'lVMl 

"i  a  bill  in  clmncery  v.-i'l  iirrvnil,  ur.!cb5  refnlfd  1  y  ilie  ti>tiii.niiy  of  t\vo  witnesses,  or 
of  »'"•  \vnnt-s  with  cqiiinii-.lt-  elvcumstancei 


i-(.(-cn<-!  in  n  t  nni    n  l-.cird  uf  cnnvt  v-.inct— H»s  A  >u>  !i  -in  •  .  -•  -tasi-;  liii^It-   in  l.r  sold  un 

a  ft-ri  j'arir.s,  so  as  to  plnc-r  tin-  |ninl:n«i  r  in  ilji-  irc,m  -.1  A: 

\\hoilu-r   in   not   Isnil  is  hovinilhy  :;   ji  il^nu  >.'.  it  i!"   '.  !i:i«  r.  'r.%t  !iim,  nnil 

O'Jo.c  i  xccut-.iiii,  A  bena  file   iel!»b  la  right   <i>  I!,  tl,::t  C.  tin   i^i.iiiufl',  iiiiii'gii  *  Jteri /acias  take 
jnu  »tll  it  without  in<iuiiiii£  or  bii-Lini,-  t'uv  other  propirt}?    C'-'''e 


803  «   kSES  JN  THiB  COURT- OF  APPEAl 

1808.         ami  Diil'am,  beinu;  sei/.cd  in  fee  of  a  tract  of  land   - 

in  iEfav/ontf county,  sold  a  part  thereof,  (describm;  it,}  to 
the  other  defendant,  Patrick,   and  give  him  a  bond   for   a 
conveyance  thereof  to  him  ifi  fee.      That   Patrick,  at    the 
time  of  purcha-e,  paid  a  con.-idei;!l>li'  p.!  it  of  tin1  p;ircha>c 
money,    and  gave   his  bond  tor  piiMnciit  of  the   re>idue. 
That  \\hen  the  bond  became  due,   Patrick   tendered    the 
Mini  of  money  iherrui  mentioned  to  Jliitlum,   a-jreeablv  i» 
the  acts  of  assembly  in  such  case  made,  but  /)<illc,n  ret'n- 
cd  to  receivp  the  same.     The  bill  next  slates,  that  a  judg- 
ment was  obtained   in  flarford  county  court    a_-;iii;.-t   Pu- 
trick,  a  fu ri  facias  issued  thereon,  which  was  laid  on  part 
of  the  land  purchased  as  aforesaid    by  him;  afterwards  a 
renili'ioni  crponas  i.-Micd,  and  under  it  the  land  was  sold, 
and  was  purchased  by  one  Patlison  for  the  complainant,  as 
appeared  by  the  deed  of  the  sheriff  executed    to  the  com- 
plainant, and  accompanying  the  bill,     That  under  execu- 
tions, on   other  judgments  against  Patrick,  the  residue  of 
the  land  was  sold  to  the  complainant,    who   received    the 
sherifTs  deed.     'I  hjit  Slvwp  had  afterwards  received  the 
rents  of  the  land,    and  after   the  sales  made  to  the  com- 
plainant, Patrick,  with  a  view  of  defrauding  the  complain- 
ant, c^ve  up  the  bond  of  conveyance  to  Si'jimp.     That  the 
complainant  had  made  application  to  Stuinp  lor  a  COIIM-V- 
ance  of  the  lands.     The    bill  prays  that    Slump  may   be 
compelled  to  execute  to  the    complainant   a  deed   for  the 
lands.     The   defendants,    Stump  and  DaUum,   demurred 
.illy  to  the  bill,  assigning  for  cause,  that  the  bill   did 
not  contain  any  matter  of  equity   whereon  the  court  of 
<  l.jnci TV  could  ground  any  decree,   or  give  the  coiupl^in- 
ant  any  relief  or  assistance  against  the  defendants. 

-SON,  Chancellor,  (October  term  1800.)  The  chan- 
ccll'  r  uij'lerstiind.s  that  by  a  recent  decision  of  the  court 
of  appeal>(« j,  an  n^iHtibic  intcfist  in  lands  may  be  sold 
under  a  fieri  fccM*,  and  that  the  purchaser  stands  in  the 
place  of  the  de:  ..  law.  He  cannot  otherwise  than 

i cmark,  that  this  decision  appear-,  from  transactions  in 
liiis  court  and  in  the  land  odice,  agreeable  to  the  opinion  of 
the  late  Chancellor  Jtogers,  as  well  as  of  the  present 
chancellor. 

foj  Campbell  w.  MorrU,  3  Ilurr.  V  M'1/cn.  5JJ. 


OF  MARYLAND.  305 

But  \vhether  or  not  the  complainant,  standing  in  (Itc  1808 
iilace  of  Patrick,  is  entitled  to  a  decree  for  vesting  in  him 
a  legal  title,  cannot  appear,  until  the  matters  stated  in  hi? 
bill  are  admitted,  or  denied,  by  the  answer;  and,  if  denied, 
are  established  by  proof.  Decreed,  that  the  demurrer  be 
overruled,  and  that  the  defendants,  Stump  and  Dallum, 
who  put  in  the  demurrer,  be  granted  time  until  the  thinf 
Tuesday  of  February  next  to  put  in  their  answer  to  the 
t£ll  of  the  complainant. 

The  defendants  answered,  and  commissions  issued,  and 
testimony  was  taken  and  returned. 

At  December  term  1803,  the  defendants,  by  their  peti- 
tion stated,  that  the  complainant  commenced,  in  the  court 
of  chancery,  a  suit  against  them  for  the  same  cause,  and 
to  obtain  the  same  relief  for  which  the  present  suit  had 
been  instituted,  and  that,  in  the  former  cause,  it  xras  sa 
proceeded  that  answers  were  filed,  and  a  commission  is- 
sued to  examine  witnesses,  upon  which  a  great  number  of 
witnesses  were  examined,  and  their  testimony  returned  to 
the  court,  and  that  thereupon  the  cause  was  set  down  for 
hearing,  and  the  defendants  were  ready  to  show  that  the 
complainant  was  not  entitled  to  relief;  but  the  complain- 
ant dismissed  his  bill,  and  thereby  prevented  a  hearing  of 
the  cause.  That  several  important  witnesses,  whose  testi- 
mony was  returned  in  the  former  suit,  are  dead,  and  seve- 
ral others  removed  out  of  this  state  to  distant  parts,  so  that 
their  testimony  could  not  be  had  on  the  commissions  is- 
sued in  the  present  suit.  Prayer,  that  the  depositions  had 
and  taken  in  the  former  suit,  so  dismissed,  shall  be  receiv- 
ed and  read  in  evidence  at  the  hearing  of  the  present 
cause. 

HAN-SON,  Chancellor,  was  of  opinion,  that  the  defen- 
dants were  entitled  to  have  their  prayer  granted;  and  it 
"was  accordingly  ordered  and  decreed,  that  the  depositions 
in  the  cause  heretofore  dismissed,  and  mentioned  in  the 
said  petition,  be  received  as  evidence  on  the  hearing  of 
this  cause. 

The  testimony  taken  in  the  former  suit  was  exhibited, 
&c.  and  the  cause  was  argued  before  the  Chancellor,  by 

Scott  and  7\  Buchanan,  for  the  Complainant;  and  bv 

Murfm,( Attorney  General,)  HoIUngsttirlh,  and 
/or  the  Defendants. 


301  v    ISES  IN   niE  COURT  OF  APPEA • 

TI\vM>\,    Chancellor,   (October  term  180 -I.)     On    con- 

tltt  ;ind  exhibit-;,    \c.  it 

appear-  to  the  chancellor,  that  he  cannot  grant    the  ; 
of  the  bill  without  a  violatim.  .1  p<  iiu  ipies    in  this 

c«'.:i;  '•>!       In    '  place,    the    contract,    (.1 

v.hirh  the  complainant  claims  (he    benefit,    is  «uch   a  con- 
it  will    not  en- 
force.    It  wa«  a  spcci-'atinir    contract  for  continental    mo- 
i.  if  7'rt/nY/i-  the  pnrtv,  instead  of  //'>/ikin»,  \\crc 
complainant,  this  court  would    not   enforce;  and   it  is   in;- 
possible  for  any  rational  man  1o  conceive,  that  an  a^si^nee, 
<T  any    p:':  - m    claiming    in   the  place  nf  the  pnrtij,   shall 
a  hetlcr    situation   than  •  y   himself.      But    it 

appears,  th.>  idea  of  the  c.onipl  linant  that  Slump,  in  whom 
alone  the  le^al    title  no-  -   \\iHiri2;  to   perform    the 

contract,  and  so    stipulated,   but  that  aira;  were 

made  to  defeat  or  defraud  the  complainant.    On  this    sub- 
inant  called  on  the   defendant-   tor  full  ex- 
pin  i'  :  bi!t  the  d<  fVndan(>  i;ave.  liv  tlioir  an - 
explicitly  denied  the  chief  important   matioi-  charged   in 
the  hi1,?. 

There  is  no  principle  better  established  than  this,  that  if 
a  dofiMidant  be  compelled  to  answer,  whatever  he  s.: 
oath  shall  prevail,  unless  refuted  by  the  testimony  of  two 
.  or  of  one  witness  \\i;h  equila!»le  circ'imstances. 
]lnt  the  testimony  in  this  ca«e  is  nothing  like  such  a  refu- 
tation of  the  answers  nf  the  sovetal  dei-ii'lants,  notwith- 
standin;;  the  strong  pointed  charges  made  by  the  complai- 

<)n  the  demurrer,  Iho  chnnrelior   Ions;  since  derided   iii 
the  complainant"-  I  'ar  as   this — the  court   of  ap- 

peals havitis:,  as  he  was  informed,  decided  an  equitable  in- 
to be  liable  to  a  furl  fitrla.t.  tin  ho  has  at  a 
sale  on  a  firri  fadus  p«:                            an    etpilable    inte- 
rest, .-                                  !  of  this  court  to  sfive  him  the  le- 
,;le.     This   is  the    ]•!  iin   meaning  i.f  i:>e    chancellor's 
declaration,  which  however  appears   to  have  been  mUun- 
dcrs 

It  would  socm  li!,e\\i-e  tV.at  the  complainant  misunder- 

,  th"  chancellor  in  another  particular.     Hut  n< 
son,  arquaintod  with  li  *  or  practice  of  (hi* 

court.  u«  uld  roncei\e   it  the   meaning   of  the   chancellor. 
that  whatever  matter  stated  in  a  bill   is  not  denied. 


t)F  MARYLAND. 

be  considered  as  admitted.  No!  If  interrogatories  stated.  1808 
in  a  bill  are  not  auswen'd,  the  complainant  has  a  right  to 
vxcept  to  tiic  answer,  and  if  the  interrogatories  are  proper, 
the  defendant  will  be  compelled  to  answer  plainly,  fully 
and  explicitly.  II  then  any  material  matter,  charged  in 
the  complainant's  bill,  lias  been  neither  denied  nor  ad- 
mitted by  the  answers,  it  stands  on  hearing  of  the  rause 
for  nought.  This  assuredly  every  lawyer  will  admit. 

And  now  let  it  be  inquired,  what  is  that  equitable  in- 
terest which  the  court  of  appeals  has  said  is  liable  to  be 
sold  on  a  fieri  facias?  The  chancellor  does  not  fully  un- 
derstand it.  But  he  readily  conceives,  that  if  A  has  pur- 
chased land  from  13,  and  paid  for  it.  without  receiving  a 
conveyance,  or  if  B  holds  in  trust  for  A,  in  either  case  A 
has  an  interest  liable  to  be  taken  and  sold  on  a  fieri  facias, 
and  the  purchaser  is  entitled  to  the  aid  of  this  court  to 
obtain  the  legal  title.  But  if  A  has  only  contracted  and 
given  his  bond  for  the  purchase  money,  and  received,  ia 
return,  a  bond  of  conveyance,  the  chancellor  questions, 
whether  A  has  such  an  equitable  interest,  as  is  liable  to 
be  sold  on  a  fieri  facias,  so  as  to  place  the  purchaser  in, 
the  room  of  A.  If  such  be  the  meaning  of  the  court  of 
appeals,  the),  in  effect,  say,  that  a  cause  of  action  or  law 
suit  is  liable  to  a  fieri  facias.  In  short,  the  chancellor  is 
inclined  to  think,  that  the  meaning  of  the  court  of  appeals 
•was,  that  if  A  has  a  complete  equitable  title  to  land,  of 
which  the  naked  legal  title  is  in  B,  the  land  is  liable  to  a 
fieri  facias  on  a  judgment  against  A. 

The  chancellor  cannot  conceive,  that  contracts  for  land, 
•which  may  be  deemed  to  confer  an  equitable  interest,  are 
so  far  bound  by  a  judgment,  as  that,  after  the  judgment, 
and  before  a  fieri  fucic:-s,  the  parties  cannot  come  to  a  set- 
tlement— For  instance,  A  gives  his  bond  to  B  for  810,000$ 
the  price  of  Black  Jlcre,  containing  500  acres.  B  gives 
in  return,  his  bond  to  A,  in  the  penalty  of  §20^000,  con- 
ditioned for  conveying  the  said  land.  These  bonds  are 
both  dated  the  1st  of  January  1800.  At  May  term  1802, 
C  obtains  a  judgment  against  A,  for  810,000.  In  No- 
vember of  the  same  year,  A  and  B  agree  to  vacate  the 
contract,  and  afterwards  C,  takes  out  a  fieri  facias,  is  it 
reasonable  to  suppose  the  law  to  be,  that  A  had  an  equita- 
ble'interest,  which  being  bound  by  the  judgment  of  C, 
coul'd  not  be  given  up;  and  that  although  A  may  have  per- 
YOL  u  39 


806         CA?E*  IN  THE  COURT  OF  APPEAL! 

1808  sonal  property,  or  laml,  sufficient  to  satisfy  the  judgment, 
C  may  insist  on  laying  the  execution  on  the  contract?  for 
laying  it  on  the  land  is  laying  it  on  the  contract.  No! 
The  impropriety  of  the  iilea  is  glaring.  Another  doubt — 
Supposing  equitable  interests  in,  or  mere  contracts  for, 
land  liable  \ozfierifacias,  at  what  time  are  these  inte- 
rests or  contracts  bound?  Are  they  absolutely  bound  by 
the  date  of  the  judgments?  Or  are  they  to  be  bound  in 
the  same  manner  as  personal  property  is  bound,  vi/..  from 
the  time  only  of  delivering  the  writ  to  the  sheriff?  The 
chancellor  has  always  considered  it  a  most  important 
question,  never  decided,  (that  he  knows  of,)  whether  or 
not  land  is  bound  by  a  judgment,  so  far,  as  that  if  A  has 
a  judgment  against  him,  and  before  execution  A  bona 
fide  sells  his  right  to  B,  C  the  plaintiff  may,  on  fieri 
facia*,  take  and  sell  it,  without  inquiring  or  seeking  An- 
other property.  The  chancellor  is  not  appri/.ed  of  any 
Opcision  to  this  effect,  if  any  such  has  been.  But  if  ?»uch 
decision  has  taken  place,  although  he  certainly  would  go- 
vern himself  accordingly,  he  could  not  do  otherwise  than 
question  its  propriety. 

In  England,  whose  laws  we  follow,  lands  were,  long 
since,  bound  by  judgment;  that  is  to  say,  if  A,  against 
•whom  a  judgment  is  obtained,  has  land,  and,  after  the 
judgment,  conveys  it,  the  plaintiff  may,  notwithstanding, 
affect  it  by  the  writ  of  Elegit. 

During  our  connexion  with  England,  its  parliament 
passed  an  act,  subjecting  lands  in  America  to  be  sold  un- 
der a  fieri  facias,  in  the  same  manner  as  personal  proper- 
ty, to  satisfy  judgments,  obtained  by  subjects  of  Great 
liritain.  The  act  did  not  say  a  word  respecting  lands  to 
be  bound  from  the  time  of  the  judgment  j  but  it  seems, 
that  moxl  or  many  gentlemen  of  the  bar  entertain  an  idea, 
that  although  personal  properly  is  only  bound  by  thr  de- 
livery of  the  writ,  and  Inndu  are  liable  as  personal  proper- 
ty, the  lands  arc  bound  from  the  time  of  the  judgment,  to- 
be  taken  by  fieri  facias  at  any  time  afterwards.  Sup- 
posing the  law  to  be  so,  and  supposing  contracts,  as  afore- 
said, liable  to  fieri  facias;  that  is  to  say,  that  the  pur- 
chaser under  a  fieri  facia*  is  to  be  placed  in  the  situation 
<>f  the  defendant  at  law,  the  nature  of  Patrick's  contract 
is  such,  tliat,  as  the  chancellor  has  already  intimated, 
ought  not  to  be  enforced,  cveu  if  Patrick  were  the  eo»- 
plainant,  instead  of 


OF  MARYLAND.  80$ 

1'lic  counsel  for  the  defendants  has  indeed  alleged,  that         1808i 
the  chancellor's  decision  on  the  demurrer  is  grounded  on       ^~v~*. 
a  mistake,  and  that  the  court  of  appeals  never  has  decided  vs 

Couway 

an  equitable  interest  to  be  liable  to  a  fieri  facias.  If  the 
counsel  be  right,  there  is  an  end  of  the  case  at  once.  But 
the  chancellor  cannot  think  that  the  counsel  is  right,  but 
laments  that  tribunals,  whose  decisions  are  to  govern  other 
tribunals,  do  not  give  their  opinions  at  large  on  every  im- 
port ant  point. 

The  chancellor,  as  is  his  uniform  practice,  on  every  im- 
portant point,  has  given  his  opinion  pretty  much  at  large. 
lie  might  still  perhaps  be  more  explicit  as  well  as  full,  but 
he  conceives  that  he  has  said  enough.  Decreed,  that  the 
bill  be  dismissed.  From  this  decree  the  complainant  ap- 
pealed to  this  court;  and  on  the  cause  coming  on  to  be  ar- 
gued, and  the  counsel  for  the  parties  declining  to  argue 
the  case, 

BECREE  AFFIRMED,    NISI*. 


POE  vs.  CONWAY'S  Adm'r.  JUNE." 

APPEAL  from  Baltimore  county  court,  rfssumpsit brought    In.  «*«««/>«>  fc^ 

work   and  labour* 

by  the  appellee  on  the  7th  of  April  1801,  for  work  and  ^es  a^°f,/^£: 
labour,  &c.  performed  by  his  intestate  for  Poe,  the  appel-  *?££ '^™? ,'^c« 
lant,  on  the  4th  of  September  1798..  The  act  of  limita-  S.hftSM: 
tions  was  pleaded;  and  at  the  trial  the  plaintiff, below  of- 1*^^^ 
fered  testimony  to  prove  an  acknowledgment  by  the  de-  JSotftS^-S 
fendant,  that  the  intestate  had  performed  work  for  him,  ^"the^Tp^he 
but  that  he  had  an  account  iri  bar,  and  when  a  persoji  who  l!%nbouhe  c°™uid 

•         it  i  ill  have  the   business 

was  then  up  the  bay  should  come  to  town,  he  would  nave  settled,  was  »uffi- 

•     ,         ,    n       i  i      .1  ,      cient  to  dtfrnt  the 

the  business  settled.     The  defendant  prayed  the  court  to  operation  of  the 

.,.,,.  „,   >  &et  of  limitations* 

direct  the  jury,  that  this  testimony  was  not  sufficient  on 
the  pleadjngs  to  prevent  the  operation  of  the  statute  of 
limitations;  which  direction  the  court  refused  to  give.  The 
defendant  excepted;  and  the  verdict  and  judgment  being 
against  him,  he  appealed  to  this  court. 

/ 
Martin  and  Gwynn,  for  the  Appellant* 

Jlollingsivorth,  for  the  Appellee. 

JUDGMENT  AFEIRJfED. 


goa  IN  T'tK  roi'RT  • 

J>.;<n\  N:  \< .    v>.    M.uui.L. 

Arrr.M.  from  Baltimore  county   rourf.      JJr^ifvin    for  a 
.  bronchi  by  tiie  appi'llei-  au;.nnst    the  appellant.    The 
defendant    below    pleaded   pi^j.-rly    in    him«uf,    and  i 

"lined.     It  WM  agreed  between^  the  parties,  that  if  the 
byUw  lor"  hJV. ,  j'iry  find  the  property  of  the  horse,  mentioned  in  the  derla- 

ol  honri.  Her.  dor*  . 

'irth.  \>UT-  ration,  to  have  been  in  the  plaintm  previ-  below 

ch««r  to  hold   Hie 

feme  •*>intt  UK-  stated,  then  the  judgment  shall  be  f<>r  the  plaint: 

cUmi   of   the  true  • 

u»":r  to  the  opinion  of  the  court,   upon  the  following  case:    \ 

1  h-n-  M  no  mar- 

to»««ert  in  ihu  certain  Samuel  Johnson  delivered  the  horse  in  question  to 
Richard  Cuh-rncdl.  a  person  duly  authorised  by  the  cor- 
poration of  Hallimorf  to  sell  hordes  at  public  s.ilo.  On 
VTedaetdaj  the  20th  of  March  1790,  Culwrwctt  sold  the 
horse  at  the  public  market  of  the  city  of  HallirnorC)  in  the 
market- space  established  by  law,  to  Hrotmin:*,  the 
fendant,  between  the  hours  of  ten  and  eleven  o'clock  of 
the  forenoon;  Wednesday  brin';  the  public  market  day  <>l 
the  said  market-space.  Bron  I  Cn/rr. 

for   the   horse,    fairly   and    hi)  .     and    without    any. 

knowledge  that   the  horse   belonged   to  any  oi!i"r  pr; 
than  the  person   \vho   had  then  sold  him;  :yul  the  ; 
market  tolls,  and  other  duties  t;>  be  complied  with  a 
bly  to  the  regulations  of  the  market  in  the  said  sale,  wx-re 
discharged.      I'cfJici  for  the  plaintilV;  and  the  court   g 
yi'l'^ment  on  the  c;i-e  stated  and  verdict,  for  the    plaintiff. 
From  that  judgment  the  defendant  appealed  to  this  court. 

The  case  was  argued  before  TILGHMAN,  J'.  aud 

GANTT,  J. 

Martin,  for  the  Appellant.     The  question  is  how   far 
property   in   the   hands  of  a  bnnu  fule  purchaser  shall  bo 
protected?     At  common  law  it  is  clear,   that   a   pu;. 
of  property  in  public  places,   markets-overt,   is  pro 

Uv  tin-  c'l-toin    of  JMII-'  d:iv    is  a  public   d. 

•  9    ,         m  m  \ 

the   sale   of  ^noi!-,  &c.    and    the  purc!ia>Lj-  is  protected  in 

his   purchase.     Every   article   sold   during   the   hours   for 

sellinL'  in  shops  in  London,  i>  legally  sold,  if  i 

cle  usually  sold  in  »uch  shop.      It  is  by  the  common   law, 

thatini-\n\  thing  sold   in   market-overt,   the  purch. 

j)r«.tected,  and  it  is  not  confined  -.olely  to  the  city  of  L»a~ 

don  undi-r  the  custom  of  that  lity.   The  statute 

TIJ  Mil,  c/i.  11,  makes  an  alteration  of  the  common  law; 


OF  MARYLAND.  309. 

and  if  property  is  stolen,  and  the  thief  is  prosecuted  to  1308. 
conviction,  then  the  party  has  a  right  to  recover  his  pro- 
|>erty  from  a  bona  fide  purchaser.  But  to  recover,  he 
must  proceed  to  the  conviction  of  the  thief,  and  can  only 
recover  of  him  in  whose  possession  the  property  is  at  the 
time  of  the  conviction,  even  if  the  owner  gave  notice  of 
his  intention  to  prosecute  the  thief.  Jlorwood  vs.  Smith, 
2  T.  R.  750.  A  purchase  at  a  market-overt,  is  at  such 
places  as  are  authorised  by  law  for  the  sale  of  property- 
All  places  where  things  are  commonly  sold  are  markets- 
overt.  A  market-overt  means  nothing  more  than  the  place 
•where  certain  articles  are  usually  sold.  The  purchaser  of 
property  in  market-overt,  is  guilty  of  no  impropriety  oc 
laches;  but  there  is  laches  on  the  part  of  the  owner  of  the- 
property  who  does  not  keep  his  property  safe  and  secure 
from  being  stolen.  It  is  true,  that  the  stealer  of  a  horse 
rnay  get  him  to  market  sooner  than  h.e  could  most  other 
articles,  so  that  he  could  not  be  pursued  and  taken  so  soon 
as  he  could  if  he  had  stolen  any  other  article.  Yet  there 
is  no  distinction  by  the  common  law.  In  2  Blk.  Com,  449, 
the  principles  are  fully  laid  down,  where  it  is  said  that 
property  may  in  some  cases  be  transferred  by  sale,  though 
the  vendor  hath  none  at  all  in  the  goods;  for  it  is  expedient 
that  the  buyer,  by  taking  proper  precautions,  may  at  all 
events  be  secure  of  his  purchase;  otherwise  all  commerce 
between  man  and  man  must  soon  be  at  an  end;  and  there-* 
fore  the  general  rule  of  law  is,  that  all  sales  and  contracts 
of  any  thing  vendible,  in  fairs  or  markets  -overt,  (that  is 
open,)  shall  not  only  be  good  between  the  parties,  but  also, 
be  binding  on  all  those  that  have  any  right  or  property 
therein,  and  for  this  purpose  were  tolls  established  in 
markets.  Market-overt  in  the  country,  is.  only  held  on  the, 
special  days  provided  for  particular  towns  by  charter  or 
prescription;  but  in  London,  every  day,  except  Sunday,  is 
laarket  day.  The  market  place  or  spot  of  ground  set  apart 
by  custom  for  the  sale  of  particular  goods,  is  also  in  the, 
country  the  only  market-overt.  In  Baltimore  there  is  no. 
market-overt,  except  such  as  is  established  by  law.  The 
same  reason  which  makes  every  day  a  market  day  in  Lon- 
don, applies  to  all  large  towns  and  cities.  In  Lomlon^ 
every  shop  in  which  goods  are  exposed  public! v  to  sale,  i^ 
market-overt,  for  such  things  only  as  the  owner  profiles 
iu.  But  if  goods  are  stolen,  und  sold  out  of 


310  CASES  IN  THE  COURT  OF  API'K.u  i 

180R.  market  overt,  the  owner's  property  is  not  altered,  and  he 
may  take  them  wherever  ho  find*  them,  provide-l  lie  MM-= 
duo  diligence  in  prosecuting  tlje  thief  to  conviction, 
likewise,  if  the  buyer  knows  the  properly  not  to  be  in  the 
seller,  or  there  be  any  other  fraud  in  the  transaction.  If  a 
(nan  buys  his  orvn  goods  in  a  liur  or  market,  the  contract  of 

-hull  not  bind  him,  so  that  he  shall  render  the  ; 
unless   the    property  had    been   previously    altered  by  a 
forme r  >ale.      But   it  is  s:iid   that  there  is  one   spt- 

iiitl  chattels,  in  which  the  property  is  not  ca>ilv 
altered  by  sale,  without  the  express  consent  of  the 
•r.Mn-r,  and  those  are  horses,  unless  bought  in  a  fair 
or  market-overt,  according  to  the  directions  of  the  statutes 

»S-  M.  ch.  7,   and  31  Eliz.  ch.  12.     Nor  shall  such 

lake  awaj  the  property  of  the  owner,  if  within  a 
particular  time  after  the  horse  is  stolen  he  puts  in  hi> 
<  him,  and  proves  his  property,  and  tenders  to  the  pur- 

r  such  price  as  he  bpnafule  paid  for  him  in  market- 
overt.     That  if  any  of  the  points  stated  in  the  above  sta- 
tutes be  not  observed,  such  sale  is  utterly  void,  and  the 
owner  shall  not  lose  his  property.  These  are  the  regulations 
now  in  use  in  England;  but  they  do  not  operate  here.    In 
Jloru'ood  vs.  Smith,  2  T.  R.  750,  it  was  held,   that  the 
owner  of  goods  stolen,  prosecuting  the  felon  to  conviction, 
cannot  recover  the  value  of  them  in  trover  from  the  person 
-\\hopurcfiasedthem  inmarketroverf,  and  sold  them   again 
before  conviction,  notwithstanding  the  owner  gave  him  no- 
lice  of  the  robbery  while  they  were  in  his  posse-.Mon.     In 
i2  n'aoilcsori**  Lectures,   412,  it  is  said,   that  by  a 
the  property  is  sometimes  transferred. — For  in  a  sale  in 
open  market  it  is  good.     The  owner  may  get  his  property 
Ly  pni>ei-uiiii£  the  thief  to  conviction.     If  goods  stolen  arc 
;jrattiitousl\  ^iven  away  it  is  diHbrent.   They  must  be  sold. 
JIunlic.    A.  /;.   349.     It  is  said  in   2  tfzvnVa  Maritime^ 
Luit;  ot)fJ,  (note  of  the  translator,)  that  th**  general  rule 
in  England  has  always  been,  that  good-,  taken  by  pirates, 
as  well  as  goods  stolen  on  land,  remained  the  property  of 
the  original  owner,  in  whom  they  ;;_.iin   \e»t  on  the  con- 
viction of  the  offender,  unless  they  have  been  sold  in  mar- 
ket-overt.   This  exception  of  sales  of  stolen  goods  in  mar- 
ket-overt, is  peculiar  to  England,  and   was  made  for  the 
convenience  and  security  of  public  trade  and  commerce. 
(Ibid  238,)  tu^t  the  laws  of  war  give  the  victor  the 


OF  MARYLAND.  3ii 

full  right  of  property  in  the  goods  taken  from  an  enemy;         1808 
and  if  he  sells  them,  the   former   owner   cannot   reclaim       l^~~'s 
them,  though  he  finds  them  in  a  neutral  country,  or  even 
in  his  own;  but  in  a  note  by  the  translator,  it  is  said,  that 
the  English  courts  consider  a  sentence  of  condemnation  by 
a  court,  constituted  according  to  the    law    of  nations,  as 
requisite  to  change  the  property  so  as  to  bar   the  claim  of 
the  original  owner. 

Key  and  T.  Buchanan  for  the  Appellee.  A  market- 
overt  must  be  by  charter  or  prescription,  and  without  it 
there  can  be  nothing  like  a  market-overt.  -There  can  be 
none  in  Baltimore  for  the  sale  of  live  stock,  horses,  &.c. 
Even  if  there  is,  it  has  never  been  considered  in  this  state 
that  a  sale  divested  the  property  but  of  the  true  owner, 
except  in  a  certain  way.  It  cannot  be  considered  that  a 
newly  created  market  is  to  be  considered  as  a  market- overt. 
By  the  declaration  of  rights  the  inhabitants  of  Maryland 
are  entitled  to  the  common  law  of  England,  and  of  sucli 
statutes  as  had  been  introduced  and  practised  under  as  ap- 
plicable to  their  local  situation.  If  the  law  as  stated  by 
the  appellant's  counsel  is  admitted,  then  the  statutes  of 
2  P.  $'M.  ch.  7,  and  31  Eliz.  ch.  12,  which  passed  before 
our  colonization,  restricting  the  sale  of  horse?,  should  ex- 
tend to  this  country.  By  these  statutes,  the  common  law- 
was  altered  before  the  colonization  of  the  country;  and 
the  common  la\\%  which  we  are  entitled  to,  is  that 
common  law  which  was  in  existence  at  the  time  of 
colonization.  These  statutes  clearly  changed  the  com- 
mon law,  and  if  so,  the  sale  of  horses  by  those  sta- 
tutes was  exempted,  except  in  ft  certain  way.  The 
party  claiming  must  make  his  claim  good  in  pursuance  of 
those  statutes.  If  the  common  law  was  altered,  then  the 
sale  in  this  case  \vas  not  a  valid  one;  and  if  the  statutes 
of  P.  4*  Ai.  and  Eliz.  are  applicable  to  out-  situation,  then 
the  purchaser  of  the  horse  must  show  that  he  purchased 
in  a  particular  manner,  taking  it  for  granted,  (which  is 
denied)  that  there  was  a  market-overt  in  Baltimore.  He 
who  buys  in  market-overt  must  know  that  he  does  so 
agreeably  to  the  rules  of  the  market-overt.  There  is  no 
authority  in  the  charter  of  the  city  of  Baltimore,  granted 
by  the  act  of  1790,  ch.  68,  to  pass  any  ordinance  lo  affect 
persons,  not  citizens  of  flallimorc.  Nor  does  the  charter 


(  A-T.S  IN  TIII:  COURT  OF  APPEALS 

.my  authority   to  cM;tljli>li  a   market    fur   the    sale  of 

-:  but  udmiltini:  such  aiit!ioiit\    i-   •  .i\rn,  \et  l>. 

,:1  authority,  it  v.as  nut  competent  for  the  corporation, 
by  any  ordinance,    to  aflect  any    pei -on    not   a  citizen  (if 
that   city.      Having  a    limited  jurisdiction,    there    v 
authority    deiriratrd    to  e-tublish  a   inaiket 
affect  per-ons  not  within  their  jnri-dution.      The  ci. 
of  a  market-overt  due*   not   ol   coi;r-e  -i\c  a   ri^lit  t 
horse? — It  may    give  penni-*ion  to   sell    proxl-lm-.      The 
inarki-t    space  in  JiuliiiiKirr^    means  a   portion   of  ground 
just  by  the  market  established  for   the   sale  of  live   - 
&.c.     A  maiket -overt   never  attached  to  the  erection  of  a 
new  maiket,  but  only  to  an  old  establi-hed  maiket,  where 
the  powers  are  given  to  hold  a  market-overt.       It  i-  not  to 
be  supposed  that  every  market,  establi.-hcd  in  the  different 
counties  for  the  sale  of  provisions,  d •)•.•-    imply  that  i 

Id  there.  It  appear-  lh.it  in  London  there  can- 
not be  sold,  in  a  jeweller's  shop,  any  thing  not  usuallv 
sold  there.  So  in  the  market  in  Jictltimorc  for  the-  sale  of 
'  contemplated,  nor  is  it  (o  be  inferred, 
that  horses  can  be-  sold  there.  Upon  the  same  principles, 
the  sale  of  slaves  might  be  made  at  such  a  market.  It 
must  be  a  market  established  for  the  sale  of  the  particular 
species  of  property.  The  only  act  of  assembly  then  is 
the  act  of  1793,  ch.  59,  for  the  sale  of  stock,  horses,  &c. 
at  a  different  place  from  that  at  which  the  horse  in  ques- 
tion was  made.  This  act  was  only  in  existence  for  sex  en 

.  and  would  not  have  been  so  long  continued,  if  it 
had  been  believed  liiat  stolen  horse-  n.i-i.t  be  sold,  and  the 
right  passei!  by  such  sale.  It  may  be  conceded,  that  by 
the  cixil  law  the  holder  of  property  may  sell,  but  it  is  de- 
nied that  this  is  the  law  cither  in  Great  Jirilain  or  in  this 
state.  It  would  be  holding  out  inducements  to  persons  to 
steal  property,  and  carry  it  to  Baltimore  for  sale.  Our 
contain  a  better  policy,  they  protect  the  citizens 
It  has  been  decided  in  H'hcflurig/it  vs. 
Depeyslcr,  1  Johns  Hep.  471,  that  the  /.'//-/Wi  law,  in 
regard  to  sales  in  market -overt,  is  not  applicable  in  the 
state  of  -v  J  /•<  "l,i  re  Jio  such  institution  exists. 
Nor  i-  it  applicable  in  this  state;  and  if  it  is  _the  Bj 
this  case  would  not  be  legal. 


OP  MARYLAND;  sis 

Martin,    in   reply.     The   opinion   delivered   by  Kent,        1808. 
Ch.  J.  in  Wheelwright  vs.  Depeuster.    was  extra   iudici-       ' — /— -' 

_*  Browning 

a/;    for  the  iudge  acknowledged   that  the   eftect  of  a  pur-  ™ 

Magill 

chase  in   market-overt  was  riot  strictly  before  the  court. 
The  question  before  this  court  is,  what  is  the  common  law 
of  England  as  to  markets-overt;  and  if  there  be  any  com- 
mon law  on  the  subject,  has  it  been  adopted  in  this  state? 
Caveat.  Emptor  is  not  the  rule  a*  to  the  personal  property^ 
but  it  is  as  to  real  property.     Possession  of  personal  pro- 
perty isprima  facie  evidence  of  right.    This  is  essentially 
necessary  for  the  benefit  of  commerce.     Every  market  is 
a  market-overt,  and  means  an  open  market,  in  which  every 
thing  usually  sold  is  a  good  sale.      A  sale  openly  made  in 
market,  is  made  in  market  overt.    It  is  of  no  consequence 
how  the  market  is  established;  if  it  is  an  established  mar- 
ket, that  is  sufficient  for  the  sale  of  an  article  usually  sold 
in  such  market.     In  shops  it  is  not  usual   to  sell  horses, 
but  in  other  markets  they  may  be  sold.     In  country  mar- 
kets any  tiling  may  be  sold  to   supply  the  wants  of  the 
people.     Several  acts  of  assembly  passed  establishing  mar- 
kets in  the  city  of  Baltimore.     Sales  were  not  confined  in 
those  markets  to  provisions,   but  every  kind  of  provisions^ 
live  stock,  goods,  and  every  description  of  thing  was  per- 
mitted to  be  there  sold.      The  act  of  1793,  ch.  59,  estab- 
lished a  market  for  the  sale  of  live  stock,  &c.  and  it  point- 
ed out  a  different  place  where  the  market  should   be,  be- 
cause inconveniencies  arose  from  the  sale   of  live  stock, 
&c.  in  the  other  markets,  where  they  had  been  sold   be- 
fore.    This  act,  not  answering  the  purposes  for  which  it 
was  intended,   was  permitted  to  expire,  and  the  sale  of 
live  stock,  &c.  left  as  it  was  before  that  act.     It  is  right 
and  proper  that  a  fair  purchaser,   who  bona  fide  pays  his 
in  one  v,  should  be  protected  in  his  purchase.     The  original 
owner  is  sufficiently   protected  if  he  prosecutes  and   con- 
victs the  thief.     The  statutes  of  P.   and  M.   and  Eliz. 
protect  as  to  horses;  but  the  price  bona  fide  paid,  must  be 
repaid  to  the  purchaser. 

JUDGMENT   A7FIHMKD. 


CASES  IN  THE  COURT  OF  APPEAL? 
SMITH,  et  al.  vs.  SMITH,  et  al. 

APPEAL  from  the  Court  of  Chancery.  The  bill  filed  by 
the  appellants  stated  that  ff'illiam  Cramlcll,  being  seized 
in  fee  of  a  tract  or  tracts  of  land  situate  in  .•> 


4»i«j*n  ATM.  de»i-  county,  did,  by  his  will  dated  in  1793,  devise  the  same  iu 
eq  uiir  dmded  t><  -  fee  tail  general  to  HHUani  Cramlu'l,  of  ."Maw,  and  to  H'il- 
e-s  we  and  Ham  Smith:  and  in  case  the  said  //  illiam  Crandell  should 

S,  10  ibrrn  «nd  . 

^e  w'tuou^  kwfirf  issue,  then  he  devised  one  half  of  the 
l**'l  to  nis  nephew   Gilbert  Smith.    The  devise  is  as  fol- 
lows:  *'I  Jevise  aml  bequeath  unto  my  dear  wife  Emdia, 
™r"ffcw!  during  her  widowhood,  all  my  tract  of  land  known  by  the 
of  Grammer's  Parrot,  and  at  the  day  of  her   death 


ithou"ia»u.  or  marriage,  t  leave  the  above  mentioned  tract  of  land  to 

ful  it.uc,  thr  estate  ,  ..    .  .     .    .  it--;/- 

tu.  br*»mt  -rxiinct  be  equally  divided  between  my  two  nephews,    William 

—•nil  ih*   lini'tiiii-  it,  .1,.  o  i 

onutrrtnusicmk  Crandell.  son  of  Adam,  and  William  Smith,  to  them  and 

efft  c  i.  a  nil  on<-  root- 

njr  ui  ih.   i.ndi  ||ie|r  heirs  for  ever:  and  in  case  the  above  named  William 

.11  him  in  Tee 

'"rh'e'aet  o«  i-'f.  ^rant^  ('ies  witliout  lawful  issue,  then  I  give  one  half  of 
c*  «,  u>  dirrci  d,  •-  tjie  a^vc  mentioned  tract  of  land  to  mv  nephew  Gilbert 

VCBDf  M  ••  CMMCi 

for  rt™(^i'r»iitai"e  SmMh  to  him  and  his  heirs  for  ever."  The  testator  died 
toV^Tulur  I"  "he  shortly  after  the  date  of  the  will,  without  changing  or  re- 
^"eli'in^i*  mu?!  voking  it;  and  a  few  years  thereafter,  both  the  devisees 
dlt'crndiMe^io''.!!  died  minors,  and  without  issue.  The  testator  had  no  issue, 
trimi"  iiTuii  »nd  but  had  one  brother  and  sister  of  the  whole  blood,  and  one 
.  **"  brother  of  the  half  blowl.  The  brother  of  the  whole  blood 
was  named  Adam  Cram/e//,  who  died  before  the  testator, 
leaving  two  children  Jl  illiam,  the  devisee,  and  Sarah,  the 
last  of  whom  died  a  minor,  and  without  issue.  Sarah,  the 
sister  of  the  testator  of  the  whole  blood,  married  one  Na- 
than Smith,  by  whom  she  had  five  children,  viz.  the  com- 
plainantsi  Elizabeth  and  Sarah,  and  Gilbert  Smith,  the  per- 
son named  in  the  will,  and  Hannah  and  Sophia  Smith,  (mi- 
nors,) the  defendants.  The  complainants  stated  in  their  bill, 
that  they  were  advised,  that  on  the  above  facts,  the  dis- 
position over  to  Gilbert  Smith  was  void,  and  that  all  the 
property  devised  to  the  two  devisees,  had  descended  to  or 
devolved  on  them  by  virtue  of  the  act  of  descents)  but 
that  on  account  of  the  minority  of  two  of  the  heirs,  a  ^alr 
or  division  could  only  be  effected  in  this  court.  They  also 
stated,  that  William  Cntivldl,  the  devisee,  was  sei/.fd  in 
fee  of  other  land,  which,  on  the  above  facts,  descended  aa 
before  stated;  and  that  the  land  could  only  be  sold  or 
divided  by  this  court.  Prayer  for  a  sale  of  Die  land-,  or 


OF  MARYLAND.  315 

a  partition  thereof,  as  on  a  consideration  of  all  circum-  1808 
stances  should  seem  most  advisable,  &c.  Upon  the  coming  V-^^"* 
in  of  the  answers  of  the  defendants,  which  admitted  the 

o  rim  t& 

facts  as  to  the  descent,  the  defendant,  Gilbert,  submitted 
the  legal  construction  and  operation  of  the  will  to  the 
chancellor,  and  he,  in  pursuance  of  the  act  of  1806,  cA.55, 
requested  the  opinion  of  the  honourable  Jeremiah  Toivnlcy 
Chase,  Chief  Judge  of  the  third  judicial  district,  on  the 
question,  "Whether  the  disposition  over  to  Gilbert  Smith 
was  void,  so  as  to  leave  the  land  to  descend  to  the  five 
heirs  ot  Sarah  Smith,  as  alleged  in  the  bill;  or  whether  j 
by  the  death  of  William  Cranddt,  of  Mam,  without  law- 
ful issue,  the  devise  of  half  the  land  to  Gilbert  Smith  was 
effectual  to  give  him  a  title  thereto,  or,  (according  to  the 
question  raised  by  the  counsel  for  the  complainants,)  whether 
the  devise  took  effect  immediately  on  the  death  of  William 
Crandell,  or  whether  the  land  descended  to  the  whole  of 
the  heirs  of  William  Crandell?" 

UpDn  this  submission  and  request,  the  question  was  ar- 
gued before  Judge  Chase. 

Johnson,  (Attorney  General,)  for  the  complainants. 
The  only  question  in  this  case  is,  whether  an  estate  tail 
general,  created  since  the  year  1788,  when  the  act  to  di- 
rect descents,  (1786,  ch.  45,)  took  eft'ect — remainder  in 
tail,  will,  on  the  death  of  the  first  tenant  in  tail,  desceno\ 
to  his  collateral  heirs,  or  whether,  on  the  death  of  the  te- 
nant  without  issue,  and  without  docking  the  entail,  the 
right  of  the  remainder-man  will  take  effect  in  possession? 
The  case  is  this— land  is  devised  to  William  Crandell,  and, 
in  case  he  dies  without  issue,  thea  to  Gilbert  Smith. 
Crandell  died  without  issue,  but  leaving  other  heirs  besides 
Gilbert  Smith,  capable  of  inheriting  under  the  act  to  di- 
xect  descents,  if  he  had  had  the  fee  simple.  But  he  only 
held  an  estate  tail — Are  then  those  heirs,  who  could  have 
inherited  if  he  had  died  seized  in  fee,  entitled  to  any  part 
of  the  estate  tail,  or  will  the  property  go  over  to  the  re- 
mainder man,  Gilbert  Smith?  Previous  to  the  act  to  di- 
rect descents,  it  is  clear  none  but  the  issue  of  the  tenant 
in  tail  could  inherit;  if  there  were  no  issue,  the  remainder 
would  take  eft'ect.  It  is  plain  and  evident  the  will  gave 
an  estate  tail  general  to  William  Crandell;  for  in  all  cases 
where  the  issue  generally,  that  is  male  or  female,  can  in- 


316  CASK?  IN  THE  COURT  OF  AITFAT  S 

1808          hcrit    tin'   estate  tail,   there   it   is  an   estate   tail    penera!, 
t-— v— '        whether  tli ere   is  a  limitation  over  or  not.      'I'o  prove    this 

Smith 

authorities  are  not  necessary.     If  then  William  Crandell 
)i;ul  an  estate  tail   jjcneial,  <  n  l.i-  death  vim  \\ttc  iiitit'< 
By  the  act   to  direct  dements,   it   is  e\| i  ctrd,  if 

any  person  Vm-d  in  fee  or  of  a  f.e  fail  xnnri:!,  sK-.ll  die 
intestate,  the  land  shall  descend  as  in  ihe  ;:i  i  |  ic-uincd. 
The  subsequent  clauses  in  the  act  declan.  il  at  v  I  ;i 
previously  enacted  vith  respect  to  tl.e  li-.nd  ii.  t;,li,  shall 
not  extend  to  any  estate  tail,  ii.aile,  created  ami  in  /<i>i^', 
before  the  passage  of  the  act.  The  reverse  of  the  propo- 
sition is  equally  true,  that  the  provisioi  -  'ing 
the  estates  tail  tnaile.  created  and  in  bcinx,  afler  the 
passage  of  the  act,  shall  be  affected  by  its  prmi -'. 
But  If  illunn  Crandell  obtained  an  estate  in  tail  general  af- 
ter the  act,  and  therefore  that  estate  is  aftetted  by  the 
act;  and  if  this  be  true,  vthich  aj.|  •  \ident.  then 
it  follows,  on  his  death  intestate,  the  li.iJit  he  had  in  tho 
land  descended  to  those  |n«ii-  n -;n •••  (.;;:illc  .f  inl\q- 
riting  by  the  act,  and  in  the  J.K-J  ci  tii  i  s  linn  i:t-\ided 
for.  Previous  to  this  act  none  but  tie  is-i:e  cmld  inlu  HL 
an  estate  tail.  As  then  the  issue  aloi  e  inheriieii  1  y  ihe 
provisions  of  pre-eNistinu  law4*,  and  us  tl.e  le-i^Ltute  in 
1786,  when  the  act  to  direct  dest  ••!!•-  diuaHy 
competent  to  make  other  persons  besides  the  i«Mie  ca|  alile 
of  inheriting,  and  a^  hy  that  la\\  tl  i\  h;;\e  done  so  to  af- 
fect cases  commencing  after  i(>  oj  eiatii.n.  it  .-urely  follows, 
that  those  made  capable  <>!  BO  inheriting  are  entitled  to  ihe 
respective  portions  of  the  land.  If  additional  reasoning 
was  deemed  necessary  to  -upport  the  above  piinci|  1e.»,  and 
if  any  other  part  of  the  act  need  U  usi  itcu  t<  in  j  ici.t 'of 
the  construction  contended  IVr,  tl.e  A/.////  afc/i/-?;  \\ill  i- ake 
it  clear.  That  section  C'KI^IO,  tliat  that  la\\  shall  i  <.t 
cxtentl  to  aftect  any  <:iant  or  cU\i>ec.l  U.i.d  n.  ••>],< da/  or 
particular  heirs?*  that  is,  t(»  ;.lin  t  ;:i  \  «.-/(•/<  /<.//  >j«i<il. 
But  the  exception  of  the  estate  lull  fy.tcio/j  io\e>  the  i*;itfc 
tail  general  to  be  included;  for  the  ejueptH.n  jn.us 
the  general  rule.  It  iray  be  MIJJI-K!  th; ••  tail 
general  are  embraced  by  it,  si  hi  a-  to  let  in  all  the 
issue  of  the  tc-i.ai  t  in  ;iii.  lit  i  (.t  iu  j:flm  collal 
rals.  This  intei  pretatii  n  is  .  bie.  For  sm. 
if  the  law  \\as  ci mj.etent  to  brinj-  in  v\ith  the  elde.-t  t!io 
boo  ol  Uie  tcuaut  in  tail,  it  \\as  ccjually 


OF  MARYLAND. 

t*  introduce  the  collateral  heirs,  as  persons  capable  of  in-  1808 
heriting  the  estate.  The  question  then  ts,  has  not -the  act 
done  so?  It  provides  that  "if  any  person  seized  of  au 
estate  in  any  lands,  &c.  in  fee  simple,  or  fee  simple  con- 
ditional, heretofore  or  hereafter  acquired,  or  of  an  estate 
in  fee  tail  to  the  heirs  of  the  body  generally,  created  anil 
acquired  after  the  commencement  of  the  act,  shall  die  in- 
testate, such  lands,  &c.  shall  descend  to  the  kindred,  male 
and  female,  in  the  following  order,  to  wit:  First  to  the 
child  ov  children,  and  their  descendants:,  if  any,  equally, 
and  if  no  child  or  descendant,  then  to  the  father,  and  if  no 
father  living,  then  to  the  brothers  and  sisters  of  the  in- 
tes'ate,"  &c.  It  is  certain  lhat  this  act  .vas  not  prepared 
with  due  reflection;  for  we  find  in  the  clause  above  in  part 
recited,  a  distinction  made  between  estates  in  fee  simple 
conditional,  and  estates  in  tail  general,  the  former, although 
cr.eat.ed  before  the  act,  are  operated  on  by  it,  the  latter  not; 
and  yet  it  is  clear,  at  the  time  the  law  passed,  there  could 
be  no  such  thing  as  an  estate  in  fee  simple  conditional.  All 
such  estates  were  by  the  statute  of  Westminster  converted 
iuto  estates  tail  either  general  or  special.  Aga.n,  in  the 
same  clause  we  find  a  provision  made  that  lands,  vyhicb, 
have  descended  from  the  father  to  the  son,  shall,  on  the 
death  of  the  son  without  issue,  go  to  the  father;  but  it  U 
certain  land  could  not  descend  to  the  son  until  the  father 
died,  and  if  so,  none  but  the  maker  of  the,  law  can  tell 
how  they  could  ever  go  back  again  to  him.  Co.  Lilt.  19. 
But  let  the  act  be  ever  so  inaccurately  drawn,  yet  when 
the  language  is  plain,  its  provision*-.,  however  absurd,  inusfc 
tie  carried  into  effect.  Nothing  then  is  more  plain  than 
its  language,  which  says,  if  the  tenant  in  tail  general  shall 
tlie  intestate,  vitbout  leaving  issue,  or  father,  the  land- 
shall  go  to  the  brothers  and  sisters,  and  their  descendants. 
The  course  of  descent  pointed  out  by  the  act  extends  to 
all  the  previous  estates  mentioned — fee  simple,  fee  simple 
conditional,  and  fee  tail  general.  From  what  part  of  the 
act  can  it  be  inferred,  \\hen  in  this  part  it  is  said  they 
shall  descend  in  one  general  uniform  manner  without  res- 
pect to  the  previous  estate,  that  the  rules  of  descent  pre- 
scribed are  confined  in  their  full  extent  to  one  species  of 
estate,  the  fee  simple?  It  does  not  declare  where  an  estate 
tail  general  is  created  after  the  act,  if  the  tenant  in  tail 
•fhall  fail  to  leave  issue,  that  then  the  estate  shall  go  to  a 


S18  CA.-KS  IN  TI1K  COURT  OF  API 

1808         remainder -man  «r  reversioner.     On  tlie  contrary  it   «- 
^— v-^— '        the.   previous    estate   shall    »iot  cease  while   persons  r 

ina'de  capable  of  inheriting.  Is  it  not  certain  the  \vliolc 
comprehends  all  iN  part*?  And  as  time  are  three  kinds  of 
estate.-,  fte  simple,  fee  simple  conditional,  and  fee  tail 
general,  they  are  the  respective  parts  of  that  whole  on 
which  the  law  operates,  and  operates  by  declaring  in  cer- 
tain events  the  brothers  and  si>ters  may  inherit.  In  the 
case  under  consideration,  these  events  did  take  place. 
JJefore  the.  pa-sa^e  of  thi»  law,  the  tenant  in  tail  could  to- 
tally defeat  the  remainder  over.  A  deed  executed  by  him 
would  have  that  effect.  The  deed  obtains  that  effect  by  a 
previous  law.  The  act  to  direct  descents  only  places  his 
interest  in  the  power  of  more  persons,  by  making  more 
persons  capable  of  inheriting.  If  the  legislature  had  the 
right  to  do  the  one,  they  could  do  the  other.  They  have 
most  clearly  done  the  first,  and  it  13  equally  evident  they 
have  done  the  last. 

Ridgely,  for  the  Defendants. 

CM\SF.,  Ch.  J.  certified  the  following  opinion  to  the 
Chancellor:  On  the  question  of  law,  submitted  to  my  de- 
cision by  the  honourable  the  chancellor,  arising  in  thia. 
case  under  the  will  of  ff'il/iam  Cnmdiil^  and  the  act  to  di- 
rect descents,  (1786,  r/j.  46,)  it  appears  to  me  that  the 
1rue  construction  of  that  act,  as  to  estates  tail  general,  cre- 
ated and  acquired  after  the  commencement  of  it,  is,  that 
the  course  or  manner  of  transmitting  the  tenancy  in  tail 
to  the  issue  of  the  tenant,  is  altered  or  changed  only  by 
making  the  land  descendible  to  all  the  children  of  the  te- 
nant in  tail,  and  their  respective  issue,  indefinitely,  and 
rot  the  eldest  son,  in  the  first  instance,  in  exclusion  of  the 
other  children.  It  could  not  be  thn  intention  of  the  legis- 
lature to  abolish  estates  tail  general,  or  remainders  limit- 
ed thereon,  and  to  convert  them  into  fee  simple  estates  by 
giving  them  the  same  properties 

The  words  of  the  act  must  receive  such  an  exposition  as 
they  are  capable  of,  and  must  be  so  construed  as  to  cai  i  \ 
into  effect  the  evident  intention  of  the  legislature.  That 
part  of  the  act  which  relates  to  the  collateral  relations  of 
the  intestate,  cannot  apply  to  a  tenancy  in  tail,  because 
such  estate  cannot,  dcsceud  to  collaterals.  As  soon  as  the 


OF  MARYLAND.  3(9 

ienant  in  tail  dies  without  issue,  his  estate  and  intererst  in         1808. 
the  land  ceases,  and  in   the  same  instant  the   limitation 
over,  on  the  extinction  of  the  estate  tail,  vests  in   the  re- 
mainder-man, and  no  estate  remains  in  the  tenant  in  tail, 
which  is  transmissible  to  his  collateral  relations. 

According  to  my  judgment,  it  was  not  in  the  contempla- 
tion of  the  general  assembly  to  alter  or  change  the  nature 
of  an  estate  tail  in  any  other  respect  than  by  making  it 
descendible  to  all  the  children,  and  this  is  plain  from  the 
sixth  section  of  the  act.  It  certainly  could  not  be  con- 
templated by  the  legislature  to  give  the  estate  tail  an  exis- 
tence after  the  failure  of  the  issue  of  the  tenant  in  tail, 
contrary  to  the  nature  of  the  estate,  and  the  words  of  the 
grant,  and  in  violation  of  the  rights  of  the  remainder-man. 

The  words  of  the  law  must  be  expounded  according  to 
the  subject  matter,  and  that  part  which  relates  to  collate- 
ral relations  must  ex  necessitate  rei,  be  confined  to  estates 
in  fee  simple,  and  cannot  comprehend  estates  which  have 
no  existence  at  the  time  of  the  decease  of  the  intestate. 

I  am  of  opinion,  in  this  case,  as  to  a  moiety  of  the  land 
devised  by  William  Cranddl,  that  on  the  death  of  H'llliam 
Crandell,  of  Jldam,  one  of  the  devisees,  without  lawful 
issue,  the  estate  tail  became  extinct,  and  the  limitation 
over  to  Gilbert  Smith  took  effect,  and  one  moiety  of  the 
land  vested  in  him  in  fee  simple. 

KILTY,  Chancellor,  thereupon  passed  the  following  de- 
cree: The  object  of  the  bill  in  this  cause  is  to  obtain  a  de- 
cree for  the  sale  or  partition  of  certain  lands  therein  menti- 
oned, which  are  alleged  to  have  descended  to,  or  devolved 
on,  the  complainants  and  defendants,  as  the  children  of  Sa- 
rah Smith,  who  was  the  surviving  sister  of  ftrilliam  Cran- 
dell, but  which  lands  could  not  be  sold  or  divided  on  ac- 
count of  the  minority  of  two  of  the  said  heirs.  ('The  chan- 
cellor here  stated  the  facts  of  the  case  and  then  proceeded.) 

After  hearing  the  arguments  of  the  counsel  on  the  trial, 
the  chancellor  considered  it  the  most  proper  course  to  re- 
quest the  opinion  of  the  chief  judge  of  the  third  judicial 
district,  as  he  is  empowered  by  law  to  do.  And  on  this 
request,  and  the  answer  thereto,  which  are  among  the  pro- 
ceedings, the  opinion  of  the  chief  judge  was  declared  as 
follows:  "As  to  a  moiety  of  the  land  devised  by  ff  Uliam 


3*0  I   \-'-c  IN  'HIK  COURT  OK  APPKALS 


1SOS.  (V//,   that  on  the   death  of  Jf'illutm   Owm/iV/,  MM  of 

..  o'ir  (.f  tl:e  di'vi.-i-es,    without  lawful    U-ue,    the  es- 
tate tail  became  e\:nn.t,  ami  (lie  limitation  over  to  (Hlbcrt 
'i    tt.ok  effect,  and  one  moiety  of  the  laud   vested    in 
him  in  fee  -imple.  " 

fn  conformily  to  the  opinion  thus  expressed  —  Decreed 
liy  t!ie  chancellor,  that  tin-  iompla;nanu  are  not  entitled 
1o  :i  -.air  or  parliii.m  of  that  part  of  tin-  land  of  If  illiaHi 
("runtlt'H  which  by  ll.e  vili  wasde\ised  tu  (I'd:,  i  ft  Smith, 
in  ca-e  11'illitiin  Crandrll  thrrrin  mentioned  should  die 
wi'houf  law  ful  issue,  and  that  a  decree  for  such  sale  or  par- 
tiiion  onidif  not  to  be  made. 

The  decn-e  £<ios  on  to  direct  a  sale  of  the  other  land. 
The  mmpl.ii:iant-<  appealed*  to  tlii>  t\)iirt.     But  tlie  case 
having  been  compromised,  it  was  at  the  present  I»M-III, 

;:D. 


AMD  S3  vs.   ROHINSOX  cl  ul. 

from  a  decree  of  the  Court  of  Chancery.     The 
t"^  bill  in  this  rase  xvas  filed  by  the  present  appellant  agnin>t 
.,"•#*  Archibald  Robinson,   Abraham  JarreK,   and  the  admini>- 
*•,"';,';,  ""'Uu'i'.^i'rators  of  Jfaljth   Hand.     It  stated  that   the   complainant 
&TVtot  ['i*  »ad   been  «heri(T  and   collector  of   Ifarford  county,  and 
un£?u'lAi>R?.rro£  that  he  appointed  Kobinson  one  of  his  deputies,  who  gave 
Vi(i0p.r'.rf\vi>  l)'»ii(U,  one  as    deputy  sheriff  and  the  other  as  deputy 
«|10  collector,  conditioned   for  the  faithful   performance  of  iiis 
Mm'in  hiies:  lint  in  the  bond  an  deputy  slieritV.  Jtirrclt  was  his 

bff  te    m'-nii  '  , 

M  Afiv.ia  hii »-  suretv,  and  in  that   as  deputy   collector  Jta/ith    liond  \\as 

V  H.  \  la-il 

i<  ii.dmr-n^ti.it  ||13  suretv.      I  hat  h'ctbinson  navinwo-reatly  defaulted  in  lug 

id.-         <  .•.-.\dfee  •  . 

!'itv.  and  beii)''  lanrely  in  arrear  to  the  complainant,  suits 

II  .',  «i<h  in- 

? '"  ""  brought  on  both  the  bonds,  and  judgments   ol>!:>ined 

I  ii ,  ii  r        li  tin,     muf 

.,.uin»t  him  on  each  bond  at  March  term    1790,  fur  a  lai-e 

t?5irtr'DOi\rr11'! ',"  sum   of  money.     Tliat   Jhbinson,   l)eiu_'    MOBed    :itid    pos- 

.   ,-,-d  «,f  c.-n-i.leral.le  real  and  pei  -  nd  for  the 

!   fraudulently   drceivin-j  and  injuiin^  the  c»»m- 

'.'"!,,U,i!.t  plainant,   a   few   day-  brf.ire   the   obtenti..n    of  the  judg- 

1  '•'••'     »    K  .  .  i   i  •  i  /  i 

, ,  IIHMIN  a_aiiut  him,  conveyed  his  real  estate  to  Jarretl  and 

•  nrfii.     Prayrr  for  n  ilisrlovin-  oTtbrtntfU,  lind  Y»c<uion  of  the  dn  it.  und  (»r 

•    ;c.  In,  Min-if 
.  .uin,  mill  (•  llrii!  ili.il  ll 

\  K,  A  j  mill  H  B,  or  any  vf 

iL'  .-.,    ..      .       :,.':..    ;.  -.-,.,„    .,1  |^;  in  ;,  ui  OjC  fitt«  |iij.t,  I!H.-  .vim  ul  fii>ir.y  du>  •  !••  H   A. 


OF  MARYLAND. 

fiond,  in  fee  simple,  apparently  and  for  the  pretended  1808 
consideration  of  1}2PO,  when  in  truth  the  conveyance  was 
executed  \vit!iotit  consideration  of  money,  and  intended  to 
guarantee  and  indemnify  Jarrcff  and  Bond  as  sureties  in 
the  said  bonds,  who  have  never  been  damnified,  or  paid  the 
complainant  any  thing  on  account  of  Rob'mwn,  but  hold 
and  enjoy  the  real  estate,  and  also  the  personal  property 
of  Robinson,  also  conveyed  to  them  since  the  judgments* 
as  a  further  indemnity.  That  they  have  permitted  Ro- 
binson to  sell  part  of  the  personal  estate  for  his  own  use 
and  benefit,  &c."  Prayer  for  a  disclosure  of  the  trusts^ 
and  vacation  of  the  deeds,  &c.  and  for  general  relief. 

The  answers  of  the  defendants  admit  that  the  deeds 
were  executed  for  the  purpose  of  indemnifying  and  securing 
Jarrett  and  Bond,  as  securities  for  Robinson.  That  Jar- 
reft  had  become  Robinson's  surety  to  other  persons,  and 
he  had  a  claim  against  him  also  on  an  open  account,  and 
for  money  lent,  and  the  conveyances  were  not  only  to  se- 
cure him  as  surety  to  the  complainant,  but  also  to  secure 
the  payment  of  the  money  due,  or  for  which  he  was  so  an- 
swerable, to  other  persons.  That  the  defendants  were 
ready  and  willing  that  the  property  should  be  sold,  and 
the  proceeds  applied  to  the  discharge  of  the  claims  due 
Jar  reft  and  Bond,  and  the  residue  to  discharge  Robinson's 
debts.  The  answers  also  stated,  that  Robinson  was  pre- 
vailed upon  to  confess  judgments  upon  the  terms  of  all 
payments  and  discounts  made  appear,  to  be  allowed,  and 
•which  the  complainant  now  refused  to  allow,  and  that  they 
can  prove,  that  but  a  small  sum  of  money,  if  any,  is  due 
on  the  judgments,  upon  a  fair  and  just  settlement. 

Testimony  was  taken  under  a  commission  as  to  the 
amount  due  to  the  complainant,  and  the  account  was  au- 
dited by  the  auditor,  stating  the  sum  of  <£395  6  8,  car- 
rent  money,  exclusive  of  interest,  to  be  due  to  the  complai- 
nant, and  £148  18  10  current  money,  exclusive  of  in- 
terest, due  to  Jarreti  from  Robinson. 

IIvvsox,  Chancellor,  (December  term  1804.)  When 
a.  man  becomes  security  for  another,  and  is  answerable  for 
his  debt,  the  chancellor  cannot  conceive  there  is  any  fraud 
in  the  principal's  conveying  property  to  secure  him,  and 
likewise  to  secure  the  payment  of  any  advances  that  may 
be  afterwards  made  by  the  security.  In  short,  the  chan* 

VOL     II  41 


CA?F.S  IN  THE  COURT  OF  APPEALS 

1808.         Cell  or  doo*  not  perceive  that  the  creditor,   having  t.> 
^•'••v— '        surety  for  his  debt,  ha*  a  right   to  vacate    any    toii%  rvalue 
made  to  the  surety   by   the  princi;  .al    fur  the  nui  i. 

Bobiomi  -        • 

counter  security.  Ihe  BI  t  nation  01  Inc  surety  vumlil  be 
haul  if  the  rule  were  otherwise.  The  circumstance  of  the 
sureties  afterwards  becoming  insolvent,  roppottng  (hat  to 
be  fairly  a  part  of  the  case,  which  it  i*  not,  the  chancellor 
conceives  has  no  effect  on  the  case.  But  inasmuch  as  the 
surety,  to  whom  the  conveyance  is  made,  is  ansuerable  to 
the  principal,  and  is  to  be  considered  as  trustee  to  the 
principal  for  any  surplus  remaining  after  the  surety  is  se- 
cured, and  the  law  gives  a  recourse  to  the  equitable  in- 
terest of  a  man  against  whom  a  judgment  has  been  ob- 
tained, the  chancellor  is  of  opinion,  and  it  is  adjud. 
ordered  and  decreed,  that  the  land  conveyed  to  the  defen- 
dant, Abraham  Jarrett,  as  stated  in  the  bill,  be  sold  for 
the  purpose  of  paying,  in  the  first  place,  the  debt  due  from 
Robinson  to  Jarrett,  and  then  to  discharge  the  debt  due  to 
the  complainant;  the  said  debts  bein-;  established,  or  to  be 
established,  by  this  court.  That  John  Moore*.  r-«|uire, 
be  and  he  is  hereby  appointed  trustee  for  making  n] 
From  this  decree  the  complainant  appealed  to  this  court. 

The  cause  was  argued  before  POLK,  BUCHANAN,  and 
NICHOLSON,  J.  by 

Itidgcly,  Key  and  T.  Buchanan,  for  the  Appellant;  and 
by 

Johnson,  (Attorney  General)  for  the  Appellees. 

TIIK  COURT  reversed  the  decree  of  the  court  of  chancery, 
with  cost?;  and  decreed  that  the  land  and  personal  proper- 
ty conveyed  to  Jarrett  and  Bond,  by  Itolwson,  in  the  bill 
of  complaint,  together  with  the  increase,  if  anv.  of  the 
personal  property  \\hich  remained  in  the  hands  of  the  ap- 
pellees, or  any  of  them,  be  sold  under  the  direction  of  the 
court  of  chancery,  for  the  purpose  of  paunn,  in  the  lust 
place,  the  debt  due  from  Kubinson  to  the  appellant, 
amounting  to  the  sum  of  JL  1  I  \  I  11,  current  money,  ad- 
judged and  decreed  by  this  court  to  be  due  to  the  ap- 
pellant, with  interest  from  the  7th  of  July  1808,  un- 
til paid,  and  also  the  complainant's  co-K  in  the  court  of 
chancery.  AU<>  d«-uTrd,  that  the  chancellor  appoint  a 
*.  the  purpose  of  making  sale  of  the  -aid  i<  al 
and  personal  property,  and  that  the  course  and  mam 


OF  MARYLAND. 

Jus  proceedings  shall   be  pursuant  to  the  directions  of  the         1808 
chancellor  in    that  respect;  and  also  that  the  chancellor 
pass  such  order  and  decree  in  the  pr- mines  as  may  be  ne- 
cessary for  carrying  this  decree  into  full  effect. 

DECREE    REVERSED. 


NEGRO  CATO  vs.  HOWARD.  JUNE," 

APPEAL  from  Afontgomtrv  county  court.     This  was  a    A  s  ave  sold  h? 

J  •  paiol  for    a     term 

petition  for   freedom,  preferred  by  the  appellant.     At  the^^^J^^'j.1 
trial  he  ottered  evidence  to  the  jury  to  prove,  that  in  Junua-  JJJS^^SeSlfS 
ry  1793,  Nathan  Harris  was  the  owner  of  the  petitioner j^' yw"h**£w 
that  by  parol  he  sold  him  to  Jesse  Harris  in  that  year,  for  {he1"*"^!™""1'  At 
seven  years,  for  £G5,  and  that  at  the  end  of  that  time  the  ,','me  "hi  °wnIi"J 
petitioner  was  to  be  free.     Jesse  and  Nathan  Harris,  at  ^S^w^BeU, 
the  time  of  the  sale  of  the  petitioner,   did  agree  by  parol,  J^. lUe  s'*vu  WM 
and  it  was  part  of  the  bargain,  that  Jesse  should  at  the 
end  of  seven  years,  from  the  time  of  the  sale,  or  sooner  if 
he  pleased  to  do  so,  manumit  and  set  the  petitioner  free. 
The  petitioner  was  delivered  by  Nathan  to  Jesse,  and 
served  Jesse  until   about   the  month  of  January  1799.      la 
February    1799,  Nathan,  \yithout  the   consent  of  Jesse, 
sold  the  petitioner  as  a   slave  to   Howard^  who  soon   after 
took  the  petitioner  into  his  custody  as   a  slave,  and  still 
holds  him  as  such.     On  the  2cl  of  March  1799,  Jesse  exe- 
cuted a  deed  of  manumission  of  the  petitioner,  which  was 
duly  acknowledged  and  recorded.     Nathan,   after  his  sale 
to  Jesse,  several  times  declared  that  he  had  no  right  to  the 
petitioner,  and  that  Jesse  was  the  person  who  was  to  set 
him  free.  On  these  facts  the  petitioner  prayed  the  opinion 
of  the  court,  and  their  instruction  to  the  jury,  that  if  they 
were  of  opinion  from  the  evidence,  that  Jesse  Harris  pur- 
chased the  petitioner  from  Nathan  Harris  in  the  year  1795, 
for  seven  years,  and  that  it  was  part  of  the  terms  of  sale 
and  purchase,  that  Jesse  should,  at  the  end  of  seven  years 
or  sooner,  if  he  chose  to  do  so,  set  free  and   manumit  the 
petitioner,  that  the  petitioner  was  entitled  to  his  freedom 
for   life   by   the  aforesaid  deed   of  manumission,  if  the 
petitioner  was,  at  the  time  of  the  execution   of  that  deed, 
of  healthy  constitution  and  sound  in  mind  and   body,  and 
capable  by  labour  to  procure  sufficient    food    and  raiment, 
•with  other  requisite  necessaries  of  lite,  and  was  uot  more 


CA^K>   IN   TIIK  COURT  Of    .Mi  i  ALS 

1B08  than  tW'v  !i\c  \rais  •  I  a-e.  But  ll,e  lourt,  (Cl,-ztftt 
C'h.  J.;  «a-  of  (>|)iiiii-n,  and  so  in.-iiiicteil  tin-  jm\,  ll.at 
if  thrv  should  find  that  the  sale  and  |  .urchase  hcuu-r 
than  and  ./me  //arm,  \\;is  ;<s  ;ih  \r  stated,  tlial  the  peti- 
tioner is  not  entitled  to  lieeuuin  unm-r  the  deed  of  inanu- 
ini— ion.  'J  he  j.etiiiotier  i-M«|Ui,:  .,1,1!  i!,«-  \erditt  and 
judgment  beiii£  against  Dim,  he  appealed  to  tin*  mint. 

The  cause  was  argued  before  TILGHMAN,  I'UI.K,  and  Bu- 
(  H  \\\N,  J.  by 

Martin,  for  ihc  Appellant,  and  by 
Mason,  for  the  Appellee. 

JUDGM1.M     ItKVfcltStD,    AND    PROCEDEXDO    AWAJIDE0. 


HUGHES  vs.  O'DOXNKLL. 


t>i<  »imr.      APPEAI.  from  Baltimore  COIU^N  ( i  mt.     'I  !.i-  v.as  an  ac- 

-    pi  in- 

^'  '„  <IOM  ""  l'"  '  N  i;il|-i'-u  tl;(i  |  i-iimli, 

au'd"  «'n  ari>e"ce')  to  ^c  ta^e"  '"  execution,  and  falH 
"'  bu'i  on  a  judgment  which  hau  been  t;i-  i.     'Ihc  ^me- 

lLSV^  i^  was  pleaded. 

''*?'*"'$      I-   The  plaintiff,  at  the  trial,  oflem!  in  exideiuea   rc- 
«T>iJrncrC<tha"\>hL-  cord  ol  a  judgment,  and   procefdlBg*  thereon,  in   a  Miit 
iiitofi'/i"1   to  "ar  \vheiein  the  defendant   (nou  appellant.)  \\;i.«  plaintill. 
the  pi"in  iff  I^H'.I  the  plaintiH,    (the  iii  i  ellee.)  \\a-  ci  ii  i.«  .-.i  '.  ~i    titi-  liith, 

l.kl     KI.I.I       ,\ .  tu-  _ 

twn  <.H  ii.e  JU.:K  that  at  Mav  term  IbOO,  a  jud&meni  vas  icn  vered  in  the 

ti.i  nt  lor    on)    l«- 

Uiwrtnu.i,  n.u-i.t  general    court,  by  the  thin  ihnntifl,  for  11 10  4  0  cmirnt 

U     ii  luaiiy     due  °  * 

Uunou.  money  d  30  and  1565  Ibs.   ol  tobano, 

costs.     That  on   the   Sd   ol   Ftbiuarv    lb(<l,   a  c< 
sued  on  the  judgn.ent,  and  v. ;is  Mi\»-d  on  (he  thru  i.. 
dant.     The  plaintill  also  ofi- red  in  e\idrtue  tin-  fi.llnwing 
receipt  of   Ztbulon  ffotKngtUfOrih,  e.-quiie,  attcrmv   tor 
the  plaintiff  in  the  judgment,   to  prove   it.-   pavn.rni    and 
satisfaction:  "-1th  An.u>'-t  IMd.      I  ha\c  i!,i>  i'a\  UKAM! 
of  John  O'Donnell,  es«juiic,  i!.i   -um   ol  <  i.r   I.M.iiicii  ;unl 
forty    rounds  one  shilliii"  and   ten   jn.ie,   in   lull   ol   the 
\vithin  judgment. 

Z.  //f.-//i/»-.v?/Y.r//:,  Att'v.  fcr  ('.  /.'unties.99 
The  defendant  then  (,fli  ml  to  «-hi.v,  that  the  ab<:.\e  rc- 

-'.ike  fin-  ;i    |i-.s   Mini  <.f  ii.oi;ry    l!  ail 

due  ou  the  jud£iut:.l.    liut  the  court  v  tie  of  I'n.i 


OF  MARYLAND.  325 

that  the  receipt  was  conclusive  evidence  that  the  judgment        1808 
v.us   satisfied,   so  f;ir  as   to   r.revent   the   plaintiff  therein       v— v— ' 

Hughe* 

from  issuing  any  execution   lor  any  balance  that  might  in  »*    , 

•f  J  O'DouweJI 

fact  be  due.     The  defendant  excepted. 

2.  The  plaini iff  further  offered  in  evidence,  that  the 
defendant  in  this  cause,  notwithstanding  the  receipt,  and 
the  notice  thereof,  ordered  an  execution  to  issue  for  the 
vhole  amount  of  the  judgment,  without  endorsing  thereon 
the  sum  of  money  so  lecthtd  on  account  thereof,  and  di- 
rected the  whole  amount  to  be  executed  for.  The  defen- 
dant then  moved  the  court  to  direct  the  jury,  that  not- 
withstanding the  receipt,  if  there  was  any  balance  due  on 
the  judgment,  that  the  plaintiff  in  the  judgment  might 
take  out  an  execution  for  ihe  same.  But  the  court  was  of 
opinion  that  the  receipt,  purporting  to  be  in  lull  of  the 
judgment,  Hughes  was  so  far  bound  thereby  that  he  could 
not  take  out  execution  for  any  balance  which  might  be  ac- 
tually due.  The  defcntiant  excepted.  The  verdict  and 
judgment  being  lor  the  plaintiff,  this  appeal  was  brought 
by  the  defendant. 

The  case  was  argued  before  TILGHMAN,  BUCHANAN,  and 
GANTT,  J.   by 

Harper,  for  the  Appellant.  The  receipt  in  this  case, 
though  expressed  to  be  in  full  of  the  judgment,  was  not 
RO,  and  not  being  so,  was  not  conclusive  satisfaction  of 
the  judgment,  and  an  execution  might  issue  for  the  ba- 
lance, and  the  plaintiff  in  the  judgment  was  not  bound 
to  endorse  the  sum  of  money  which  had  been  paid.  The 
authority  of  an  attorney  at  law  ceases  after  the  judg- 
ment is  entered,  and  he  has  no  right  to  enter  the  judg- 
ment satisfied,  when  in  fact  it  is  not  so.  He  may  per- 
haps receive  payment,  and  give  a  receipt  therefor;  but 
he  has  no  right  to  enter  the, judgment  satisfied.  He  may 
say  what  he  has  received,  and  as  far  as  that  payment  goes, 
it  probably  is  a  discharge.  Until  the  whole  sum  of  money, 
however,  is  received,  the  plaintiff  may  go  on  and  issue 
execution,  and  if  a  part  only  is  due,  he  can  issue  for  that. 
The  opinion  of  the  county  court  gots  so  far  as  to  say  that 
tl»e  attorney  may  enter  the  judgment  satisfied,  and  the 
plaintiff  is  bound  by  it.  It  has  been  decided  that  an  exe- 
cution is  not  rendered  illegal  if  it  has  not  an  endorsement 
of  the  amount  actually  clue.  The  sheriff  i,  not  bound  to 


326  CASE?  IN  THE  COURT  0?  AITK  U,> 

1808.        execute  (lie  writ  without  such  endorsement;  boifct  mav 

do  M>  if  lie  pleases.  Jhtcunl\s.  The  Livy  L'mttt,   1  llarr. 
4-  Jo/ins.  566. 

/    n-ittnce  and  S.    TArr.sc,  jr.  for  the  Appellee.     If  the 
principal  himself  had  received  the  money,   ami  .U/IUM. 
ceipt  in  lull   of  the  judgment,  he  could  not   i->ue  ;i:. 
cution  thereon,  un!e»  hi-  h;ul  given  notice  of  ti 
If  llie  attorney  enters,  a  judgment  satisfied,  the  plaintiff  is 
bound  by  it.     lie  has  his  temedy  again-t  the  attorney,  but 
cannot  go  against  the  defendant.     Ihe  authority  ;:i:d   ex- 
tent of  the  powers  of  an  attorney  are  fully  laid  down  and 
recognized  in  the  following  authorities:  Latin h  n>.  I'unlu- 
runlc,   1    Salk.  86.   Lamb  vs.   ll'iiliams,  Ibid  89.    / 
ra.  Litlle,  1   II'.    ItlL  8.    ll'elsh  vs.  Hole,    1  Doug.    238. 
1  Roll.  M.  «21)1,/)/.  17,  £0.     1    Hue.    M.    IBS.     1 
In-.:.    40.  Read  vx    J)v}n>n;   6    T.  /.'.   561.     Handle  vs. 
Fuller,  Ibid  45G.   Ormerod  vs.  Talc,    1  Eaxt,  464.    There 
\va>  no  endorsement  on  the  execution  of  any  money  paid, 
and  the  defendant   was  taken   in   execution  for  the  whole 
amount  of  the  judgment.    The  jury  were  to  judge  whe- 
ther it  was  a  malicious  .proceeding,   and  if  so,  to  give  da- 
mages accordingly.     It  does  not  appear  that  the  execution 
issued  for  tli e   balance.     II  any  balance  was  due,  it  was 
only  ~£l   1.9  9,  which  might  have  been  settled  in  anotlu^ 
vay.     There  might  have  been  a  preceding  payment.      The 
appellant,  with  a   full   kiii.wli.d-e  of  the   payment   which 
had  been  made,  issued  the  execution  fur  the  whole  amount 
for  which  the  judgment  had  been  rendered.     This  actiou 
is  fur  a  malicious  prosecution   of  an   execution;  for  \ 
tiou-lv  cai  ippeUee  to  be  Ukep  in  execution,  and. 

demanding  a  I;::  i  <f  money   tlian  was   due;  for  au 

abuse  <it   i  M  of  tl.e  court.     It   would  be  a  d 

iou>  doctrine  if  a  client  could  undo   and  destroy  what  hl> 
attorney  had  clone.     If  an  attorney  i  judgment 

-uni  of  moiM  y  which  his  client  might  consider   too 
small,  could  In  In  in   the  judgment,  and   hi 

new  suit?     The  same  principles   pu\ail  with  i 
the  attorney  as  to  all  other  kinds  of  a-ent-.       II  an  attor- 

!>u^es  the  interest  of  his  client,    he  i-   ai.>v.ria. 
him.     The  receipt  of  the  attorney  was  Millicient  to  a; 

,e  clerk  of  the  court  to  enter  the   jiid^men: 
and  it  not  being  so  entered,  can  make  uo  diii  v 


OF  MARYLAND.  327 

Jnitting  that  the  receipt  did  riot  operate  as  an  extinction  of        1808. 
the  claim,  yet  it  operated  so  far  as  to  prevent  an  execution 
from  issuing.      The  appellant  d'ul  not  issue  the  execution 
upon  the  ground  of  a  small  balance  being  due,  but  he  is- 
sued it  for  the  whole.     He  should  have  given  notice  to  the 
appellee  of  the  mistake,  and  that  a  balance  was  due.     His 
proceeding  was  as  much  an  abuse  of  the  process  of  the 
court,  in  demanding  a  large  sum  of  money,  when  little  was 
due,  as  it  would  be  to  demand  a  larger  sum  when  there 
was  nothing  due. 

Iiurprr,  in  reply.  During  the  pendency  of  a  suit  the 
attorney's  acts  will  bind  his  client.  He  is  then  pursuing 
his  authority.  But  his  authority  ceases  when  judgment  is 
obtained,  and  he  has  no  right  to  enter  it  satisfied  when  it 
is  not  so.  If  he  acts  within  his  instructions,  it  will  bind 
his  client. 

THE  COURT  dissented  from  the  opinions  expressed  by 
the  court  below,  in  both  of  the  bills  of  exceptions. 

JUDGMENT    REVERSED,    AND    PROCEDENDO    AWARDED. 


RATRIE  vs.  SANDERS.  Juxii 

APPEAL  from  Montgomery  county  court.    The  appellant  ,.  w''"-e  Hie  de.' 

feurinnt  WHS  in  pns> 

brought  an  action  of  replevin  against  the  appellee,   for  a  ?e',s;(."Y    "*>    antl 

Hiding  a  s':iv«',  for 

negro  slave  called  Jane,  to  which  non  cepit  infra  tres  annos,  t''esv«<-e  "'.  Oiree 

*  •?  '  years  antecedent  »o 

and  aclio  non  accrcvit  infra  tres  annos,  and  property  in  the  an^e",!,',',1',1,}1""  •<<<-f- 
defendant,  were  pleaded.  The  defendant,  at  the  trial,  ^e^oav,.-"}^ 
prayed  the  court  to  direct  the  jury,  that  if  they  were  oftfe*^Uw£*» 
opinion  from  the  evidence,  that  the,  defendant  had  been  in  l^^JlersooE 
the  possession  of  Jane  for  the  space  of  three  years  prior  to  SS^rty*1™  '!>e 

.1        •       ,•/     ,.  f  .1  •  -tiii-  i  i  •  slave  had   hoen  irt 

the  institution  or  this  suit,  holding  her  as  his  own  proper-  UK-  phiimiir.  ami 
ty,  that  then  the  act  of  limitations  was  a  bar  to  the  plain-  him  io«ne<il»r  a'u 
tilTs  action.  But  the  court,  (Cla°-ett.  Ch.  J.)  refused  to  "V,  "who  ".i'.'.i-ii^ 

..          ..  .  tlmt  lonn    so!,l    the 

give  the  direction;  but  did  direct  theiury,  that  if  thev  were  slave  uxiit-d  .f:!1((. 

.  J  •  an:;  and    alth(i«Bh 

satisfied  tliat  the  property  in  said  slave  was  in  the  plaintiff,  tli(<  s";t  w     '' 

'        '        .-  within  tluv 


e  years 


. 

aad  that  he  lent  her  for  an  indefinite  time  to   Joseph    San-  li;"'.11  .''"  'irae  lhe 

]>:ai  ;ii  iff    knew    of 

rfer.9,  and  during  that  loan  Joseph  Sanders  sold    her  to  the  suth  sale' 
defendant,  that  by  the  sale  the  defendant  stood  in  the  same 
situation  that  Joseph  Sanders  had  stood  in,  and  <liat  the  act 
of  limitations  did  not  begin  to  run  against  the  plaintiff"  un- 


ASES  IN  THE  COITRT  OF  APPEALS 


fil  Iio  knew  of  flu1  salt1  by  J<isij>h  Satnlrrx  to 

Tl.c  defendant  cs«  ,-ptcil;  and  the  verdict  ami  jiul^iucut  be- 

ing against  him,  he  brought  the  present  appeal. 

The  is   argued    before    TILGHMAN,  POLK,  and 

BlTH  VXAN,     J. 

A*»//<  for   the   Appellant,  referred  to  the  act  of  1715f 
tti.  23,  s.  2. 

,  fur  the  Appellee. 

JUDGMENT    REVERSED,   AND   PHOCEDENDO  AWARDED. 


DEC.  (E.  S.)  GHAY  and  BIDDLE  vs.   WOOD,  et  vx. 

rm",i. ",rvBn  nut*.      APPEAL  from  Cecil  county  court.     An  action  of  assump- 
,'  •//  \\as  brought  in  the  names  of  the  appellees,    for  tin 

,  '.,','.' !  of  />-,>j<nn!,i  Xfui/ff,;   upon  a   promissory  note  dated   the 

i  January  iSill,  executed  by  the  appellants,  an. I  pa\a- 
tauir<evIi*Hi*m  n  ble  on  demand  to  Elizabeth,  (the  female  appellee.)  \\hil.st 
»  .!i>,  by  the  name  of  Elizabeth  Hugg,  or  order. 

4urw;iUMit  .  ill 

I  lie  giMierai  i^sue  was  pleaded. 

•  i  •   • 

«j»u-d  iij  \jems  air      l.   At  t.ic  trial,  the  original  note  was   produced   by  the 

till*  ltd 

plaintiffs  in  support  of  their  action,  and  then-  •ppearing  a 
blank  cndorsemi-nT  in  the  name  of  tlie  payee,  Elizabeth 
.//i/.-.'-.ir.  whicii  the  dd'enda-its  proved  to  be  her  hand  writing, 
the  defendanis  in-i>ted  tliat  the  note  «as  transferred  by 
the  endorsement  to  /irnjamin  X/ui/frr,  of  which  the  insti- 
tution of  the  Miit  for  his  use  \va»  an  e\idci!tr.  Tl •«•  de- 
fendants al>o  olVered  testimony  to  show,  that  at  the  time 
this  endorsement  v.as  made,  Shn/hr  paid  a  valuable  consi- 
deration fur  the  note  to  Elizalnlh  llui::s,  \\itha  view  to 
contend  that  the  whole  interest  of  the  payee,  in  the  note 
passed  to  Shn/ttr,  and  that  the  action  ou»ht  to  have  ln-en 
in  his  name  as  endorsee.  But  the  court.  [_Tili;hiium,  (.  h. 
J.  and  1'iirnilL  A.  J.)  relused  to  let  the  testimony  go  to 
the  jurv.  ami  \st-n-  uf  opiniim  that  the  same  was  inadmis- 
sible. The  defendant  excepted. 

•2.  The  plaintilVs  then  called  (he  labscriblDg  witness  to 
the  note,  to  prove  the  execution  of  it,  who  proved  that  the 
in.:  il  Itv  the  defendants,  and  attested  by  him 

the  wiine-s,  but  not  on  the  1st  of  January  IKOI;  that  the 
note  *;is  antedated,  and  he  did  not  know  on  what  day  it 
executed.  The  deftLuair.i  il.ui  pia;cd  tin-  court  to 


OF  MARYLAND. 

Direct  the  jury,  that  this  was  not  sufficient  and  proper  evi-  1808 
dence  to  g;>  to  the  jury,  to  support  the  issue  joined  on  the  ^^T^^ 
part  of  the  plaintiffs.  But  the  court  were  of  opinion,  that  vi 

the  evidence  was  competent  and  proper,  and  permitted 
it  to  be  given.  The  defendants  excepted;  and  the  ver- 
dict and  judgment  being  for  the  plaintiffs,  this  appeal 
was  prosecuted  by  the  defendants. 

The  cause  was  argued  in  this  court  before  BUCHAI*AKV 
NICHOLSON,  and  GANTT,  J.   by 

Cosden,  for  the  Appellants;  and  by 

Earle,  Carroll  and  Carmichad,  for  the  Appellees. 

THE  COURT  concurred  with  the  County  Court  in  the 
Opinions  expressed  in  both  of  the  bills  of  exceptions. 

JUDGMENT  AFFIRMED. 


OAVIS  et  ux.  vs.  WALSH.  DECEMBER? 

APPEAL  from  a  decree  of  the  Court  of  Chancery,  dis-  w  n  becoming 
missing  the  bill  of  complaint.  The  bill  stated,  that  Davis  o"  'h^nfaTest-ue 
beinj  seized  of  a  valuable  real  property,  and  also  pos- tru»t««,  am/pur- 

..  ,  ,  chased  by  C   D,  to 

sessed  of  a  considerable  personal  estate,  consisting,  among:  whom  a  deed  w«» 

...  .   °    exeeuted.    C  D, in 

other  tilings,  of  certain  chattels  real,  and  being  also  in-  mnkinp  the  Pur- 

...',:_,.  chaiev    acted    pro- 

debted  to  divers  citizens  of  this  and  of  the  United  Stales.  f^Aiy  as  a  w. nd 

'    to  \V  D,  so  far  that 

beyond  what  he  was  able  to  pay  without   a  greater  indul-  if  he ,.COIlld  Pro" 

J  l     «•  cure  the  purchase 

gence  than  his  creditors  were  disposed  to  grant  him,  was  ""^  ^in  h| 
compelled,  sometime  in  the  summer  of  the  year  1787,  to  SStffofSfpJI 
apply  to  the  chancellor  for  the  benefit  of  the  act  of  assem-  could  not' raise  thl 
bly  respecting  insolvent  debtors;  that  in  consequence  becamT iTe°e"mVy 

to  sell  a  part  of  the 

e*Mt<-  to  reimburse  C  O,  which  pirt  W  D  and  M  his  wife,  were  desirous  to  preserve  to  themselves,  and 
were  anxious  to  procure  a  friend  to  become  the    purchaser  for  and  on  In-half  of  M,  the   wife,  and  at 
n  trustee  for  IKT;  winch  intention,  pivviou*  to  the  sale,  was    made  known   to  R  VV,   who   approved  of 
it,  a  n  si  it  was  agreed  that  .f  S,   should  be  the  nominal  purchaser,    and  R   W   was   to  be  his  surety  for 
the  pin-chine  money.    .1  S  became  the   purchaser,  and  it  was  known  and  unilerst<K>d,  at  the  time,  that 
he  purchased  lor  l\{  the  wife  of  W  I).  R  W  became  suretj^for  J  S,  and  W  D  has  always  been  in  posses- 
si-Mi  of  the  premises.     \V  I),  havin?  part  of  the  purchase  money    applied   to  R  W,  to  obtain  a  bond  of 
conveyance  from  C  D  to  M,  the  wife  of  W   I),  for  the  property,  when  he  was    informed  by  R  W  that 
he  h:>(l  pot  «  bind  to  himself,  a<  .1    S  hail  ffivt-n    it  all  up    to   him,  and   that  W    D    had  nothing  to  do 
with  if.    J  S  had  been  induced,  in  order  1 1  secure  R    W,  to  direct  C   D  to  pive   a  bond   of  convey* 
mice  to  H  \V,  who  aviured  J  »  that  no  aJrtmliiGfe    should  be    taken  of  \V  D,  and  that    When   he  paid 
the  purchase  money,  a  d';ed  shonl.l  bu  executed  to  his    wife  M.    The  pretniies    were  conveyed  by  C  D 
to  II  \V,  win  brought  ait  action  of  ejoctmt-nt  n^.unst  W  D.  The  amount  ot  principal  and  interest,   of 
the  purehsst-  money,  w<» tendered  by   \V  D    in  R    XV,  and   a  deed   demanded,    which   he  refused  to 
CM'onte.     W  D,  an  1    M  his  vvite,  Hleil  then- bill  acriina  K.  W,  ro  b>- qui-ie.,1   i'i    their    p»s$e<sion    of  the 
pre  iiis>-<,  and  t.i  e->  nj> -I  a  conveyance  IV.i  n  him  to  M,  the  wife— Decreed,  that  11  VV  convey   the   land 
in  question  to  W  O,  an. I  M.  hi<  wife,  in  fee  <i  ui>l'-,  und  that  an  accou:U  U«;   stated,  &c,  and  the   bH* 
(aucu  due  bs  p  liJ  at  the  ti.nii  R  \V  sliull  convjy  ttii  UuJ. 

VOL.  n..  42 


CASES  IN  THE  COl'RT  OF  APPEALS 

1808         thereof  Stephen  Jf'ilson  and  Robert  Lemmon  were  appoint' 
cJ  trustees  on  behalf  of  the  creditors  of  /A/n'.s,  and  that 
he  executed  to  them,  on  the  10th  of  October  1788,  a  deed 
of  all  his  real  and  personal  property.     That   the   tiu-i 
proceeded  to  sell,  and  did  sell  a  part  of  the  property    to 
Cumberland  Dvitun,    for  the  sum  of  £'1310  current  mo- 
ney, and  on  the  6ih  of  November  1792,  the  trustees  exe- 
cuted to  Dublin  a  deed   for  the  property   so  to  him   sold. 
That  Dtisnn,  in    making  the  purchase,  acted   professedly 
as  the  friend  of  Davis,  so  far,  that  if  he  Davit  could  pro- 
cure the  purchase  money  within   a  certain  time,  he  was  to 
have  the  benefit  of  the  purchase;  but  as  he  was  not  able  se 
io  do,  it  became  necessary  to  sell  the  property,  or  a  part 
thereof,  to  raise  the  purchase  money,   and   to  indemnify 
Duczan;  and  that  Dtt^an  being  about  to  sell  the  property, 
and  among  the  rest  the  following  five  lots,  distinguished  on 
a  plot  of  Baltimore  town  by  the   numbers  950,  951,  952, 
953  and  95-4,  which   lay  connected  and   adjoining  each 
other,  on  which  Davis  had  a  house,  in  which  he  resided 
M'ith  his  family,  and   also  a   garden  adjoining  the  house, 
•which  Davis  and  his   wife    were   particularly  desirous  to 
preserve  for  themselves,  but  thinking  themselves  not  able 
to  purchase  the  whole  of  the  lot?,  they  were  anxious  that  the 
lots  should  not  be  sold  together,  but  subdivided  into  three 
or  more  subdivisions,  each  to  be  sold  separately,   and  one 
of  the  subdivisions  to  include  the  house  and  garden:  and  in 
that  case  it  was  agreed   that  a  friend  should  become  the 
purchaser  of  the  subdivision,  including  the  house  and  gar- 
den, for  and  on  behalf  of  3/«n/,  the  wife  of  Davis,  and 
as  a  trustee  for  her,   and   that  upon  the  purchase  money 
being  paid,  the  subdivision,  so  to  be  purchased,  should  be 
conveyed  to  her;  and  the  better  to  effect  this  design,  Davis 
and  wife  conversed  with  T^alsh,    the  defendant,  who  pro- 
fessed himself  a  very  warm  friend  to  Davis  and  wife,  and 
requested   him   to   endeavour   to  prevail  on  Diigan  to  sell 
the  lots  in  subdivisions,  to  enable  Man/,  the  wife  of  Davis, 
l»v  the  intervention  of  a  friend,  to  become  the  purchaspiu 
fully  di-rloMii-j;  to  Jfnlnh  the  intention  of  Daris  and  wife, 
that  the  wifr  should  thus  become   the  purchaser  of  that 
suMivision   which  should   include  the  hftuse  and  garden. 
IVulah  perfectly  approved    Davis  and  wifr",  design,    and 
promised  to  give  hi<  assistance  for  its  completion,  but  de  • 
clared,  that  in  preference  to  applying  to  Ditgan  hiinstlf, 


OF  MARYLAND.  88* 

he  would  apply  to  major  Thomas  Yules,  the  auctioneer,  1808 
and  solicit  him  to  procure  Dugan  thus  to  subdivide  the 
property,  and  as  an  encouragement  lor  Dugan  so  to  do,  he 
\vould  let  Fates  know  that  in  sutb  case  he,  IV.tlsh,  would 
purchase  one  of  the  subdivisions,  consisting  of  meadows. 
That  Walsh  accordingly  applied  to  Yates  to  procure  a 
subdivision  of  the  lots,  informing  Fates  that  it  was  intend-? 
ed  the  subdivision,  in  which  the  house  and  garden,  were  in- 
cluded, should  be  bought  in,  in  trust  for  the  wife  of  Davis; 
and  Fates,  in  consequence,  prevailed  on  Dugan  to  sub- 
divide the  lots  into  three  subdivisions,  in  such  manner  that 
one  of  them,  containing  nearly  oue  acre  of  ground,  should 
ioclude  the  house  and  garden.  That  Davis  and  wife 
agreed  with  Joseph  Stockton,  who  married  the  sistpr  of  the 
vile  of  Davis,  to  be  the  nominal  purchaser  of  the  house 
and  garden  for  the  wife  of  Davis,  and  to  attend  the  sale  and 
bid  oft'  the  said  subdivision  for  her,  with  whiclx  Walsh  was 
fully  acquainted.  That  Davis,  the  morning  before  the  sale, 
applied  to  Walsh- to  be  the  security  of  Stockton  for  com- 
plying with  the  terms  of  payment,  provided 'Stocktpn  pur- 
chased the  house  and  garden  on  behalf  of  the  wife  of  Davis* 
•which  Walsh  agreeil  to  do.  That  both  Davis  and  wife,  as 
veil  as  Wfl/sA  and  Stockton,  attended  the  salej  that  Stock- 
ton bid  for  the  subdivision,  including  the  house  and  garden, 
and  it  was  struck  oft'  to  him  for  the  sum  of  £135,  that  be- 
ing the  highest  bid  for  the  same;  and  that  Walsh  became 
the  purchaser  of  the  other  two  subdivisions,  giving  for  the- 
one  ,£90,  and  for  the  other  £83.  That  Walsh,  Dugan* 
and  others,  well-  knew  that  Stockton  bid  for  the  wife  oi? 
Davis;  that  this  was  repeatedly  mentioned,  and  that  pub- 
licly, during  the  auction,  and  while  he  was,  bidding  for  the 
property.  That  by  the  terms  of  the  sale,  one-third  of  thq 
purchase  money  was  to  be  paid  in  three  months  from  the 
day  of  sale,  one-third  in  six  months,  and  the  other  third 
in  nine  months,  and  that  the  sale  was  made  on  the  15th  of 
June  1792,  before  which  tune  Wilson  and  Ltwmon  had 
made  their  sale  to  Dugan,  although  they  did  not  execute 
the  deed  to  Dugan  until  some  months  after.  That  Slock- 
ton  executed  and  delivered  to  Dugan  a  bond,  with  Walsh 
his  surety,  for  payment  of  the  purchase  money  for  the  sub- 
division purchased  by  Stockton  for  the  wjfe  of  Daiis}  the 
money  to  pay  for  which  was  to  be  furnished  and  provided  by 
and  that  Walsh  executed  and  delivered  to  Dvgan  a 


832  CASES  IN  THE  COURT  OF  AFPKAI..-. 

1808         bond,  with  Stockton  his  surety,  fur  the  purchase  money  of  th* 
other  two  subdivisions.      That  Duvix  and  wife  hurt  fiat!  tlic 
constant  actual  possession  of  the  subdivision  so  bid  off'  by 
'./on,  ever  since  the  said  purchase.  That  the  day  of  the 
sale,  Davis  was  at  the  house  of  Stockton,  when  Duisan  was 
there  with  bonds  to  be  executed  for  the  purchase  mom-}  ,  and 
Davis  observed  that  they  ought  to  state  the  money  was  for 
the  house  and  garden,  but  Dtigan  replied,  it  was  immaterial, 
for  that  he  would  at  any  time  give  a  bond  for  the  cnnvv.aiKo. 
thereof.     That  sometime  after  the  sale,   Davii  called  on 
Jl'alith,  and  told  him  he  thought  it  time  for  Dtisran  to  give 
his  bond  to  convey  the  house  and  garden;  for  that  ho,  Da- 
vis, had  procured   a  great  part  of  the  sum  first  to  be  paid, 
and  that  lie  Davis  wished  to  have  a  bond  for  the  convey- 
ance before  he  made  the  payment;  whereupon,  after  a  short 
pause,  Walsh  replied,  to  the  amazement  of  Davis,  that  he, 
H-alsh,  had  got  a  bond  for  the  conveyance,  and  that  Dairis 
had  nothing  to  do  with  it.     Davis  then  asked  Walsh  what 
he  meant  by  having  a  bond  of  conveyance,  as  In-,  //M/A/I, 
•was  only  the  surety  for  Stockton  who  purchased  it  in  trust 
for  the  wife  of  Davit?      Walsh  replied,  he  meant  that 
Stockton  had  given  it  all  up  to  him.     Davis   then  tuld 
Walsh  that  when  the  first  payment  became  due  he  expected 
to  make  the  payment,  and  that  he  did  not  want  Walsh  to 
pay  for  him,  to  which  Jfalvh  answered  with  warmth  that 
Daviti  hail  nothing  to  do  with  it.    That  Stockton  (as  Davis 
and  wife  are  informed   and  believe,)  being  about   to  leave 
this  state  and  go  to  PawnffomtUt,  where  he  now  resides, 
was  induced,  in  order  to  secure  ff'alsh,  to  direct  that  Du- 
gan  should  give  the  bond  of  conveyance  to  ll'ahh,  Jfalnh 
$t   the  same  time  assuring  Stockton  that  no  advantage 
should  be  taken  thereof,  but  that  whenever  Davis  paid  the 
purchase  money,  the  wife  of  Davis  should   have  a   deed 
executed  to  her  for  the  same.    That  some  months  after  the 
sale,  Davis  went  to  Dvgan,  and  offered  to  pay  him  8200, 
•which  he  had  then  ready  to  pay  him,  and   to  i;ivr  Jhigan 
security  for  the  residue,  provided  he  would   ghe  up  the 
bonds  which  Stockton  had    executed,  with  Walsh  as  his 
surety,  and  offered  to  make  payment  of  the  residue  in  six- 
ty days,  but  Df'.'uii  declared  he  could  do  nothing  without 
consulting  Walsh,  and  that  he,  Di'fran.  must  make  tl: 
veyance  to  whomsoever  Stockton  directed,  saying  that  he 
djd  u<*i  know  Davis,  in  the  transaction,  altho'  at  the  >amc 


OF  MARYLAND. 

time  Dugan  acknowledged  that  he  knew  Stockton  pur-  1808. 
chased  the  proper!)  for  the  wile  of  Davis;  and  that  Stockton 
had  so  mentioned  in  his,  Du  gun's  presence,  to  Walsh,  and 
also  that  Stockton  made  Walsh  promise  that  she  should 
liave  it  when  Davis  paid  the  money  for  which  it  was  pur- 
chased. That  Davis  was  always  willing  and  desirous  to 
have  paid  the  purchase  money  according  to  the  contract, 
and  several  times  applied  to  Dugan  on  the  subject,  and 
also  to  Walsh  as  being  the  surety,  for  payment  of  the  same. 
That  Dugan  always  alleged  that  he  did  not  know  Davis 
in  the  business,  and  that  he  had  conveyed,  or  must  convey, 
the  property  to  Walsh;  and  when  Davis  applied  to  Walsh t 
he  insisted  Davis  had  nothing  to  do  with  the  property,  and 
that  it  belonged  to  him,  Walsh.  That  Dugan  hath  actu- 
ally conveyed  the  house  and  garden,  and  the  lot  on  vvhicli 
they  are  situate,  to  Walsh;  and  that  sometime  in  June  last 
Walsh  claimed  of  Davis  £50,  as  rent  fur  one  year  for  the 
premises,  and  distrained  for  the  same,  altho'  Davis  saitH 
that  he  never  rented  the  premises  of  Walsh,  or  agreed  to 
pay  him  any  rent  therefor,  but  always  claimed  the  same  in 
consequence  of  the  said  purchase;  and  that  Davis  was  ob- 
liged to  replevy  the  goods  so  distrained  by  Walsh.  That 
Walsh  hath  instituted  an  action  of  ejectment  in  the  county 
court  of  Baltimore,  against  Davis,  to  recover  the  posses- 
sion of  the  four  lots  No.  951,  952,  953  and  954,  which  in- 
clude the  property  so  purchased  by  Stockton.  That  with- 
in the  last  thirty  days  Walsh  also  served  Davis  with  a  no^ 
tice,  as  if  he  had  been  a  tenant  of  Walsh,  to  leave  the  pre- 
mises within  thirty  days  from  the  notice,  in  order  to  insti- 
tute proceedings  against  Davis  under  the  act,  entitled, 
"An  act  to  provide  a  summary  mode  of  recovering  the  po^- 
session  of  lands  and  tenements  holden  by  tenants  for 
years,  or  at  will,  after  the  expiration  of  their  terms."  That 
on  the  15th  of  February  last,  Davis  did  actually  tender  to 
Walsh  the  whole  amount  of  the  principal  and  interest 
of  the  purchase  money,  for  which  Stockton  purchased 
the  property,  a,nd  demanded  that  Walsh  should  con- 
vey the  same  to  the  wife  of  Davis t  and  that  Walsh  refused 
to  receive  the  money,  or  execute  a  conveyance.  Prayert 
that  Davis  and  wife  may  be  quieted  in  their  possession  of 
the  premises;  and  that  Walsh  may  be  compelled  by  a  de- 
cree to  convey  to  the  wife  of  Davis  the  property  so  pur- 
chased by  Stockton  for  her  use.  fntyer  also  for 


CA?KS  IN  T!!K  COl'MT  OF  ATT!   \ 

1808.        anil  fur  .'in  injunction,  &c.     Tlie  ansv-c r  (if  U'alth.  (' 

Jemlant,  admits    ii;al  ];aris  applied  fur  the    beta-fit  of  the, 
'nMihent   law,  and   that  the   ti  ustces  named  became  enti- 
tled to  lii-  -  the  bill  alkies,  but  the  defendant  has 
no  knowledge  whether  any  agreement  e\er  took  place  be- 
tween   the  complainants  and  J)u^un,  that  in  ca.>e  the  pur- 
nu'iiry  was   obtained  by  them  lie  was  to  convey  the 
same    to   them.       The  defendant  admits  that  the   lots  of 
ground   mentioned  \vere  bold  by  Dugan  at   public  sale  as 
btated;   and    the    defendant   saith,   that   the  complainant, 
J/an/,  came  to  him  previous  to  the  sale  thereof,  and  men- 
tioned to  him  that   she  and  her  husband   were  desirous  of 
purchasing  that  part  on  •which  the  improvements  of  a  small 
linu-e  and  garden  were  made,  but  exptessed  her  apprehen- 
sions  that   they  would    be  unable   to  accomplish    the  pay- 
ments at   the  limited    periods,  ami  asked  the   defendant  if- 
he  would  consent  to   take  the  same  to  his  own  account,  in 
they  were  so   unable,  and  the  defendant  did  consent 
to  do  so.     That  at  the  sale  of  the  property,  which  was  dis- 
tributed  into  three   parts,  the   defendant  became  ibe  pur- 
chaser of  two  third   parti  thereof,    and   that  Stockton  be- 
came the  purchaser  of  the  remaining  third  part,  including 
the  house  and  garden, as  the  defendant  was  informed  and  be- 
-,  in  trust  for  Duvia,  in  the  event  of  his  making  the  pay- 
-  in  3,0  and  9  months,  that  being  the  time  limited  at  the 
sale  thereof.     That  the  defendant  became  the  security  ot- 
Slurktnit    for   the   purchase   money   of   the   third    part,    to 
../i,  and  at  that    time  also  informed   Stocktvn  that   he 
had  made  the  promise,  herein  before  stated,  respecting  the 
.  tu  Mr-.  Davis.     That  before  bonds  for  the  convey- 
ance of  the  lots  of  ground   were  executed  by  Dir^tin^  the 
complainants    sexually   tane   to  the  defendant,  and    in- 
formed him  that  they  had  determined  not  to  have  any  thing 
to  do  with  the    purchase  trade  !>;.  .  and  recp 
the  defendant  to  lake    the  uhole  ii|  on   hii'iseif,  and  obtain 
a  boi:d  in  his  nun  name  for  the  ct.nve^ance  thereof:  at  that 
time  also  the  defendant   tnn*enled  to  t.-Ac  the   same  upon 
himself,  but    «.bser\ed  to   the   CHinplai'iant    J)aiist   that  it 
Mi.uld  be  jiroper  for  him  and    Xforl-tt-n  to  call   on   Du^un 
an<l  ie<|iiest  that  the  bond  of  conveyance  shouMl  be  execut- 
ed to  the  defendant  only.     That  shortly  .me;  this  conver- 
sation, Davit  and   Stockton  informed   the  defendant   that 
they  had    waited  on  Dvgan  for  that  purpose.      That  at 


OF  MARYLAND.'  335 

another  day,  previous  to  the  execulinn  of  the  bond  of  con-        1808 
veyance,  Davis,  in  conversation  with  the   defendant  rela- 
tive to  the  property,  anil  in  order  to  induce  the   defendant 
the  more  readily    trt  take  the  purchase   upon  himself,    in- 
formed him  that  Peter  fMzingcr,  the.  proprietor  of  the  ad- 
joining ground,  would   sell  the  same  on   reasonable  terms, 
and  advised  the  defendant  to  purchase  the  same,   as  he 
would  thereby  obtain   the  whole  front  on  both  sides  of  the 
street;  and    the  defendant  did  accordingly  purchase  the 
opposite  front  from  TAtzingcr;     The  defendant  afterwards 
obtained  the  bond  of  conveyance  in  his  own  name;  that  he 
\vas  pressed  to  take  the  same  both  by  Stockton  and  Davis. 
That  at  the  stipulated  periods  he  paid  the  purchase  money 
to  Duyan,  and  has  since  obtained  conveyances  in    fee  for 
the  whole  of  the  property;  and  at  the  request  of  Stockton 
executed  to  him  a  bond  of  indemnity  against  the  payment 
of  the  purchase  money  to  Du*an.  Tiiat  Davis,  at  the  'time 
of  the  sale  of  the  property,  was  considerably  indebted  to  the 
defendant  for  goods  sold  and  delivered,  and  that  on  that 
account  he  is  now   indebted  to  the  defendant  in  the   suni 
bf  more   than    dCaO.       That    after   the   defendant    made 
the  first  payment  for  the  property  to  Dugan,  he  informed 
Davis  that  he  must  pay  £30  per  annum  rent.     That  he  al- 
ways considered  himself  entitled  to  recover  that  sum,  and 
that  Davis  was  his  tenant  at  that  rent,  and  compel  1  able  to 
the  payment  thereof  by  distress.     That  under  this  impres- 
sion, and  in  consequence  of  Davis's  refusal   to  pay  the 
same,  he  levied  a  distress,  and  instituted  such  process  for 
the  recovery  of  the  possession  of  the  property,  as  stated  in. 
the  bill.     The  defendant  doth  positively  deny  that  he  ei- 
ther, directly  or  indirectly,  ever  promised  or  gave  any  other 
assurance  to  the  complainants,  or  either  of  them,  or  to  Slock" 
ton,  that  whenever  they  paid  the  purchase  money  he  would 
execute  a  conveyance  for  the  third,  or  any  other  part,  to 
Mary  one  of  the  complainants.     That  lie  does  not  believe 
any  tender  of  money,  on  account  of  the  pretended  claim  of 
the  complainants,  was  ever  made  to  any  person,  until  near- 
ly two  years  after  the  sale,  when  Davis  came  to  the  de- 
fendant's house,  and  told  him  that  he   came  to  tender  him 
money  for  the  property  now  possessed  by  (lie  complainants, 
when  the  defendant  answered,  that  as  lie  had  neither  sold, 
nor  promised  to  sell  him,  any  ground,  he  could  not  receive 
on_that  account,  but  would  bu  thankful  to  receive  and 


338  ^SES  i>  mi-;  ronir  OF  AIMM-.ALS 


1808.  appb  the  same  to  their  credit  for  ^.>mls  sold  in  Mrs.  Daiis 
two  year*  before,  which  Davis  refused.  ol^ervinu;  lli.it  that 
account  should  bo  paid  in  due  time.  Tliat  since  the  pro- 
perty hith  been  in  the  po^e--i-in  of  Dui-is,  the  same  hath 
suffered  threat  injury.  and  the  defendant  has  rea-on  to  ap- 
prehend, acid  doth  believe,  will  be  almost  v.  hollv  ruined  if 
sutVered  to  remain  with  him:  and  the  defend.  uit  is  restrain- 
ed from  taking  the  possession  thereof.  The  defendant  doth 
posit  i\ely  aver,  that  he  hath  no*er,  since  the  purchase  of 
the  pioperty,  promised  or  bound  himself  to  permit  the  com- 
plainants the  privilege  of  paying  up  tlie  principal  and  inte- 
"f  the  purchase  money.  and  taking  the  property;  and 
express!  v  denies  any  trust  whatever  for  their  benefit.  He 
denies  the  fraud  and  oppression  charged  by  the  complain- 
nnts,  &c. 

A  motion  <o  di  -solve  the  injunction  was  made  by  the  de- 
fendant, which  being  submitted, 

II  \vsov,  Chancellor,  stated,  that  the  bill  and  answer 
•\vere  br  him  read  and  considered,  and  it  appearing  that 
the  equity  slated  in  the  bill,  on  which  the  injunction  ua> 
obtained,  is  fully  denied  by  the  answer;  and  there  being  no 
circumstance^  to  induce  the  chancellor  to  continue  the  in- 
junction until  final  hearing,  or  further  order,  it  is  adjudg- 
ed and  ordered^  that  the  injunction  be,  and  it  is  herebjr 
Dissolved. 

Commissions  issued  for  taking  testimony,  which  were 
executed  and  returned,  containing  (he  following  oidence. 

Josfph  Stockton      lie  affirmed  that  in  the  year  ir9.">  he 
•was  present  at  the   sale  ot  a    house   and    lot   situated  on 
IlnmpalPdJ  Hill,  at  the  head  of  //^(/-street,  in  the  city  of 
Jlultiinore,  that  the  s::!r  was  made  by  order  of  Cumberland 
-?,  the  owner  of  the  property,  under  the  superintcn- 
<lance  of  major  ]'c!fs,   an  auctioneer;  that  at  the  time   of 
,ie,  the  premises   were  divided   into   three   parts  or 
parcels;  that  the  aflirmant,   at  the  instance  and  request  of 
Muni  /):n:is,    one  of  the  complainants,    with    the   know- 
ind  approbation  of  her  husband,  the  other  complai- 
nant, became  the   purchaser  of  the  lir.-t  p.irt   or  parcel  of 
the  preini-es,  whereon  a  hou»e  and  garden   were  erected 
and  laid  out;  that  at   the  time   of  the  sale  it  was  publicly 
announced  by  the   auctioneer,  and  was  understood  by  tin; 
•lunt,  who  was  present,  that  the  afiirmant  made  the 


OF  MARYLAND.  i 

\ 

purchase  as  agent,  and   for  the  use  of  the  complainants,         1808 
that  the  defendant  became  the  purchaser  of  the  other  two 
lots,  parts  or   parcels  of  the  premises;  that  the   affinnant 
bid  c£!30  for  the  lot  which  be   bought,  and  that  the  defen- 
dant bid  a  larger  sum  (how  much  the  affinnant  cannot  re- 
collect,) for   the  two   parts   which   he   bought.     That  the 
adinnant   and    I  Taluk  became  mutually  bound   for  each 
other  unto  Dugan,   for  the  price  of  their   respective  pur- 
chases.    That  a  few  days  after  the  sale,   when  the  allir- 
rnant  was  about  to  leave  Baltimore,  it  was  agreed,  by  and 
\vith  the  knowledge  and  consent  of  all   the  parties,   that 
Dugan  should  convey  the  whole  of  the  premises,  as    well 
the  lot  purchased  by  the  affinnant.  as  the  other  two  lots, 
to  the  defendant;  that  when  such  conveyance  was  agreed 
upon,  Davis  declared  it  was  done  in   confidence,   and,  as 
the  affirmant  understood,  upon  trust,  that  so  soon  as  the 
defendant  should   be  relieved   from  his  suretyship  on  ac- 
count of  the  lot  purchased   by  the  affinnant,  the  same 
should  be  vested  in  the  complainants,  for  whose  use  it  had 
been  purchased;  that  the  affirmant  directed   such  convey- 
ance to  be  made  accordingly,  and  never  understood  or  in- 
tended that  the  same  should  convey  any  other  property  or 
interest  in  the  lot  by  him   purchased  as  aforesaid,   but  on 
the  terms,  and  for  the  purpose  of  indemnifying  the  defen- 
dant against    the  security   into   which  he   had  entered  as 
aforesaid.     That  at  the  time  of  entering  into  the  security, 
mutually  for  each  other,  to  Dugan,  the  affirmant  received 
a  bond  from  the  defendant  in  the  penal  sum  of  .£600,  con- 
ditioned  to    indemnify    this  affirmant  against  the  bonds 
•which  he  had  executed  to  Dugan  for  the  purchase  of  the 
premises;  that  some  time  in  the  year  1793,   subsequent  to 
the  commencement  of  the  present  suit,  the  defendant  call- 
ed upon  the   affirmant  in   Philadelphia,    (where  the  affir- 
mant then  lived,)  and   produced  and   delivered  up  to  the 
affirmant  the  bonds  executed  to  Dugan,   whereupon  the 
affirmant  delivered   to  the  defendant  the  bond  which  the 
affinnant  had   received  from  him  to  indemnify  the  allir- 
mant  as  aforesaid.     That  the  complainants  were  in  pos- 
session of  the  premises   at  the  time  of  the  sale,   and  con- 
tinued  so    \vhon   the   aiiirmant  left  Baltimore,  with    the 
knowledge,  and  as  he  believes  with  the  approbation  of  the 
defendant. 

\OL    ir '  43 


338  CASES  IN  THE  COURT  OF  APPEALS 

1S08  James  Cottier.     He  deposed,  that  sometime  in  the  year 

i  after  the  >ale  of  tinman'*  \  mpem,  the  depo- 
nent, and  Ebenezer  Graves,  were  requested  by  the  com- 
plainants to  make  a  tender  of  the  purchase  money  of  the 
house  and  lot,  which  Stockton  had  bought  for  them  at  the 
said  sale;  that  the  complainants  acroiilin:J\  :;a\e  to  the 
deponent  and  Graves  the  .-urn  of  .t'Ko,  with  an  additional 
sum  for  interest,  in  order  to  make  such  tender.  That  the 
deponent  and  Graves  made  the  fn>t  tender  of  tl.e  money 
to  Dugan,  but  lie  said  that  lie  had  already  convened,  the 
premises  to  If'ahh,  and  supposed  that  he  would  tuke  the 
money.  That  the  deponent  and  Graves  then  proceeded 
to  the  house  of  // 'alsli,  and  informed  him  that  (hey  were 
come  to  make  payment  for  the  house  and  lot  which  Slack- 
ton  had  purchased  for  Davis  and  his  wife,  \\!u>  had  <:i\en 
the  money  for  that  purpose;  that  the  deponent  and  Grurrs 
tendered  the  sum,  and  interest  aforesaid,  ai.d  req 
JTulsh  to  count  the  same:  that  Ifulsh  declared  he  had  no 
doubt  about  the  quality  or  quantity  of  the  money,  but  ob- 
<1  that  he  had  bought  the  premised  for  himself,  and 
did  not  mean  to  sell  again. 

Ebenezer  Graves,  lie  deposed  to  the  same  effect  above 
deposed  by  Gotlicr,  fixing  the  time  of  the  tender  to  the 
15th  of  February  1794,  as  made  to  Dugun,  and  on  the 
next  day  to  Jf'alsh. 

Colonel  7/tomas  Yalis.  He  deposed  that  at  the  time 
he  went  to  make  the  sale  for  Cumberland  Dttgan,  the 
complainants  both  expre:>scd  their  desire  to  become  pur- 
chasers of  that  part  of  the  property  which  included  the 
house  and  garden,  and  that  they  should  request  Mr.  Stock- 
ton to  purchase  the  s;.mo  for  them,  provided  it  did 
not  go  too  high.  He  thinks  //  af.t/i  and  Dugan  were 
present  at  the  time  of  this  conversation.  The  lots  were 
laid  off  in  three  divisions,  one  of  which  d'ni.-i-in  \\.is  to  in- 
clude the  houhe  and  garden,  to  accommodate  the  complain- 
ants if  they  were  able  to  purchase,  and  with  the  consent 
of  Dugan,  and  made  from  the  deponent's  recommendation 
to  Dublin  at  the  :le>ire  of  Davis.  It  was  understood  by 
the  deponent  that  Stockton  was  bidding  for  the  said  part 
for  Davis  or  wife,  and  believes  it  was  so  understood  by 
Walsh  and  Ditpan,  as  it  was  a  subject  of  conversation  at 
the  time  of  the  sale,  and  Ditgan  had  consented  to  the  di- 
viMon  to  accommodate  Davis  in  the  purchase,  but  he  has 
no  knowledge  of  their  bein£  acquainted,  with  Stockton** 


OF  MARYLAND.  839 

bidding  for  Davis  or  wife,  other  than  his  belief,  founded  1808 
on  the  circumstances  already  stated.  lie  heard  Wals/i, 
sometime  after  the  sale,  inform  Dug  an  that  he  had  become 
security  for  Stockton,  who  being  unable  to  pay,  had  direct- 
ed the  conveyance  to  be  made  for  said  part  by  Dugan  to 
him  Wahh. 

Cumberland  Dugan.     He  deposed  that  he  purchased  the 
property  under  an  agreement  to  let  Davis  have  the  same, 
provided  he  paid  the  purchase  money,  and  ^50  to  the  de- 
ponent for  his  trouble,  within  twenty  months  from  the  day 
of  sale;  and  if  the  purchase  money,  and  the  £50,  were  not 
paid  by  ,'hat  time,  the  property  was  to  be  sold  by  the  depo- 
nent, and  the  proceeds  of  the  sale,  if  it  exceeded  the  pur- 
chase money,  and  £50,  were  to  be  paid  to  Davis.     That 
Davis  and  wife  did  express  their  desire  to  the  deponent  to 
preserve  the  house  and  garden  for  themselves,  but  he  does 
not  recollect  that  they  mentioned  it  to  1 1  alsh  or  fates. 
He  does  not  know  who  applied  to-  him  for  the  purpose  of 
subdividing  the   lots,  but  it  was  concluded    upon  between 
him  and  Col.  Yates,  (hat  the  property  would  sell  better  if 
it  was  so  subdivided;  and  believes  the  subdivision  was  so 
made,  in  order  to  afford  the  complainants,  or  one  of  them, 
an   opportunity  to   purchase  in  the  division  containing  the 
Inuse  and  garden.     He  does  not  recollect  that  it  was  de- 
clared, at    the  time  of  the  sale,  that  Stockton  bid  for  the 
said   subdivision  for  the  use  and  benefit  of  Davis  and  his 
wife,  or  one  of  them,  but  immediately  after  the  sale  Stock- 
ton said  he  had  purchased  for  Davis  and  wife,  with  an  in- 
tention to  let  them  have  the  property,  if  they  complied  with 
the  terms  of  sale;  but  he  does  not  know  whether  the  same 
was  known  by  JVahh.     That  immediately  after  the  sale, 
the  deponent    called  on  JJ  alsh  and    Stockton  to  execute 
bonds  agreeably  to   the  terms  of  the  sale,  which  they  ac- 
cordingly did,  being  securities  for  each  other;  and  the  de- 
ponent told   them   they  might  have  bonds  of  conveyance 
•when  they  pleased.     Some  days  after  the  taking  of  which 
"bonds,  Stockton  called  on  the  deponent,  and  directed  him, 
to  execute  a  bond  of   conveyance  for  the  whole  of  the  said 
lots  to  Tt  alsh.     The  deponent  did  so,  and  the  purchase 
money  was  paid  to  him  by  IVuhh,  to  whom  he  executed 
conveyances.     That  sometime  before  the  executing  the  said 
bond  of  conveyance,  Davis,  or  his  wife,  called  on  the  de- 
ponent, and  told  him  it  \vas  perfectly  agreeable  that  a  bond 


340  (  \~r>  IN  TIIF.  cnnrrnK  UMT.M- 

1808.  of  coin  e\, mre  should  be  ^i\en  to  ll'til.tli  for  the  whole  of 
lli»-  property:  and  the  deponent  understood  that  tin-  rcm- 
plaiiunis  anil  defendant  wcie  then  on  ^<»<id  terms.  lie  be- 
lieves that  U'dlvh  ilid  know,  or  had  been  inl'.n  nied,  at  ot 
he  fore  the  time  when  the  bond  of  conve^  -it- 

od.  that  Stockton  purr!  !,>r  Darin  or  wife. 

He  believes   that  Dnvi.i  called   on  hii-i    a  short  time  i-  fore 
the  first  pa\menl   b'-rame  due,  and  afier  the  bond  of  con- 

,in<-e  had  l)ecn    -JvMi  to  •'»>/•>/».  and    said  lie  would   ; 
him  §-200.   and  give  him   sorority  for   the   remainder,  but 
Hie  deponent  s;iid  ho  cnnld  not  do  any  tiling  in  it.  because 
the  Ixind  was  nearly  due,  and  lie  expected  to  get  the  \\holc 
•\\hon  it  became  due. 

Job  Gun rt son.  He  deposed  that  it  was  publicly  said 
nt  the  sale  that  Stockton  bid  for  M:>.  A/r/.v;  that  tlie  de- 
]>onent  so  understood  it  himself,  and  ^ii:>iiO"ed  it  to  be  so 
understood  by  othersy  from  the  genera  I  eonverMtteo,  and 
he  be!ie\  c-  !'  . iiderstood  by  nV'/.s// am!  ml 

that  f)nsr(tn  told  the  deponent  sn.  That  at  the  timo  nf  the 
sale,  Slocklon  told  the  deponent  that  IValxh  liad  a^r-'ed  to 
be  security  for  him  if  he  bought  the  property.  fin 

told  the  deponent  tha*  he  supposed  JJ'nt.^i  \vnuld  ho  secu- 
rity for  Stockton.  U'ttf-th  afterwards  said  to  deponent,  he 
thought  it  was  a  pity  that  Darin  and  wife  should  be- 
out  of  the  property,  and  that  he  had  become  security  for 
the  payment  of  the  money,  and  tlu.t  v  hen  ihev  paid  the 
money  the  property'  .  That  afewd.ix-.  brfore 

St.x L.'tui  went  away,  Dit':i:t<  told  the  dej.orient  t!-.at  Stnck- 
ton  had  a  bond  of  conveyance,  and  that  he  nr  !•'  deed  or 
;\-~'^i}  it  to  IVuhh,  but  v.henever  the  PX  ney  \\.TS  (-aid,  the 
jnoj.erty  v.culd  be  tip  MK.  Davit  and  wife.  That 

Stockton,  a  little  before,  informed  the  deponent.  ih:t  he 
vas  a  good  deal  uncas\  about  his  beinp  -  r/'.v 

for  the  purchase  money  of  the  said  house  and  i;::rden;  that 
he  was  goin^  to  leave  the  place  in  a  few  dav-,;nid  had  a 
mind  to  let  IVul*h  have  it.  and  whenever  /',,/,  and  wife 
paid  the  money,  Wul*k  would  let  them  have  the  propei 
On  the  deponent  informing  Du^an  of  tliis  conversation,  the 
preceding  conversation  with  /ii'^an  took  place. 

It  was  admitted  that  Davis  iemain"d  in  ]:osscs8ion  of  the 
house  and  garden,  until  he  \vas  turned  out  by  a  writ  of 
farias  postetsionem,  issued  on  a  judgment  at  law  « 
against  him  at  the  suit  of  Mulsh's  k^5cc.     Tliat  Stockton 


OF  MARYLAND. 

removed  out  of  the  state  shortly  after  the  purchase,  and        1808. 
before  any  part  of  the  purchase  money  was  paid.     That 
the  sale   made  by  J}ugan  was  after  the  time  of  the  pur- 
chase  made  of  Davis's  trustees. 

HANSON,  Chancellor,  (December  term,  1805.)  The 
cause  standing  ready  for  hearing,  has  been  debated  by  the 
counsel  on  each  sidefoj,  and  the  whole  by  the  chancellor 
carefully  considered. 

How  (,f;en  does  the  chancellor  think  it  proper  to  men- 
tion the  principle  on  which  the  statute  of  frauds  was  fram- 
ed, and  principles  in  this  court  established.  There  is  in 
this  case  no  agreement,  that  the  chancellor  perceives.  Is 
it  necessary  to  say  that  a  contract  is  a  stipulation  or  agree- 
ment, or  understanding,  between  two  persons,  each  of 
\vhom  is  bound  to  do  something  on  his  part,  and  that  if  one 
is  not  bound,  he  has  no  right  to  consider  the  other  as  bound? 
It  is  true,  that  an  express  contract  may  be  so  made,  as 
that  one  shall  for  a  consideration  be  bound,  and  the  other 
pot  bound  without  his  own  will.  For  instance,  A  and  B 
make  this  agreement — A  binds  himself  for  the  considera- 
tion of  10  dollars,  before  the  £5th  of  December,  to  pro- 
cure to  B  10  hogs,  for  which,  if  B  likes  them,  and  chooses 
to  take  them,  he  shall  pay  at  the  rate  of  SS  per  100  wt.  In 
this  case  agreement  is  clear,  A  is  bound  to  bring  the  hogsy 
but  it  is  at  the  election  of  B  to  take  or  reject  them  as  he 
thinks  proper,  losing  his  S10.  But  if  there  be  no  con- 
sideration to  A,  it  is  not  to  be  supposed  that  he  is  bound  to 
bring  the  hogs,  and  B  not  bound  to  take  them.  This  may 
indeed  be  considered  as  illustrating  by  the  thing  itself. 
Let  it  be  said  then,  that  in  the  present  case  there  was,  ou 
the  part  of  the  complainants,  no  contract.  There  was  no 
uctus  contra  actum;  there  was  no  consideration  flowing 
from  them;  there  was  nothing  binding  on  them. 

It  has  been  contended,  that  Sloe/don  only  acted  as  trus- 
tee for  the  complainants,  and  purchased  for  them.  But 
is  there  any  proof,  or  even  allegation,  that  he  purchased 
•with  their  money,  or  that  they  were  bound  to  provide  the 
money,  or  take  the  purchase  from  them?  It  has  been  in- 
sisted too,  that  as  he  made  the  contract  in  his  own  name, 

(a)  Martin,  (Attorney  General,)  for  the  complainants,  and 
Winchester,  for  the  defendant. 


CASES  IN  TMK  CWIIT  OP   AITKALS 

1808  the  property  was  to  be  considered  as  a  security  in  the 
hands  01  him,  the  nominal  purchaser,  and  that  as  tin-.  u.i> 
the  case,  the  time  stipulated  for  redeeming  it  \vas  to  be 
considered  in  the  same  light  as  the  day  of  redemption 
mentioned  in  a  common  mortgage.  There  U  no  analogy, 
and  it  is  not  to  be  conceived  that  this  couit  ou-ht  to  deter- 
mine, that  although  there  was  no  consideration  flow-in-.; 
from  the  complainants,  and  although  there  was  nothing 
binding  on  them,  A'/ocA/on  should  be  obliged  to  cuivey  to 
them  at  any  time,  when  they  should  fir.d  it  convenient  to 
pay  the  money:  and  that  at  any  peiiod  after  the.  time 
stipulated,  \\lioever  should  hold  the  property  from,  by,  or 
under  Stockton,  after  even  twenty  mesne  transfer?,  should 
hold  it  subject  to  the  will  of  the  complainants  to  redeem 
it  at  any  time.  How  would  such  doctiine  compoit  \\itli 
the  interests  of  a  young  thriving  town? 

The  chancellor  does  not  conceive  there  is  any  solidify  in 
the  observation  respecting  answers  in  this  court.  The  »Ii»- 
tinction  if*  plain.  "Where  a  defendant  first  admits  the  allega- 
tions in  a  bill,  and  then  sets  up  some  distinct  after  transac- 
tion, byway  of  avoidance,  he  is  bound  to  prove  that  trans- 
action. But  where  a  man  is  called  on  by  a  bill  in  this  court 
to  say  whether  or  not  there  was  an  agreement  between  him 
and  the  complainant,  and  what  it  was,  his  answer,  with  re- 
spect to  the  nature  of  that  agreement,  is  to  be  taken  alto- 
gether. For  instance,  says  the  bill  of  A — B  contracted 
•with  me,  by  parol,  for  the  consideration  of  S50f  0,  to  sell 
me  SCO  acres  of  land  in  Jialtinwre  county,  of  which  he 
put  me  in  possession,  but  I  was  to  have  credit  fur  five 
years  without  paying  interest.  B,  in  his  answer,  admits 
that  there  was  a  parol  contract  for  the  land,  and  p< 
M(,n  jrivrn  ns  stated;  but  instead  of  having  credit  as  afore- 
said without  interest,  A  was  to  give  him  bond,  with  secu- 
liiv.  !nr  pay! no;  with  intrrot  in  three  years.  "Will  com- 
mon sen-e  sulVrr  a  construction  a-,  that  because  B  admits 
a  contract  and  po.«r-Mnn  he  must  be  considered  to  have 
admitted  every  thinjj;  necessary  for  A*s  purpose.  unK 
can  prove,  on  commission,  that  the  contract  was  ns  >• 
in  the  answer?  No!  the  absurdity  is  glaring.  But  if  B 
had  admitted  the  matters  stated  in  the  bill  to  be  facts,  but 
vent  on  and  said  that  afterwaid-.  A,  for  the  consideration 
of  SI 00,  had  agreed  to  give  up  the  purchase,  &c.  that 


OF  MARYLAND, 

1>art  of  the  answer  must  be  proved  on  commission,  unless         1808 
A,  on  interrogatories,  had  admitted  its  truth. 

The  chancellor  thinks  proper  to  make  a  remark,  which 
ought  to  have  come  before— supposing  Stockton  really 
bonnd  to  convey  on  receiving  the  purchase  money  on  or  be- 
fore such  a  day,  inasmuch  as  the  complainants  were  under 
no  obligation  whatever  to  take  the  purchase  off  Stockton's 
hands,  and  inasmuch  as  he  had  no  valuable  consideration, 
the  utmost  they  could  claim  in  reason  would  be  to  take  the 
purchase  off  his  hands  by  paying  the  money  on  the  day  sti- 
pulated. Suppose  this  case — they  do  not  bring  him  the  mo- 
ney on  that  day— property  has  fallen  so  much  in  value  that 
it  is  not  for  their  interest  to  take  it  on  or  before  the  day. 
He  cannot  compel  them  to  take  it.  He  does  not  wish  to 
keep  it,  but  to  get  free  of  it  on  the  best  terms.  He  sells 
it  for  S500  less  than  it  cost  him.  Ten  years  after  this  the 
property  is  woith  three  times  as  much  as  it  cost  Stockton. 
Then,  indeed,  Davis  and  wife,  whether  or  not  they  have" 
money,  can  contrive  to  redeem,  or  claim  it  to  advantage, 
provided  it  can  be  so  redeemed  or  claimed.  Well — the 
purchaser  from  Stockton,  or  tiie  purchaser  from  that  pur- 
chaser, or  the  purchaser  from  the  second  purchaser,  is  ob- 
liged, on  Davis's  application,  to  convey  him  the  property 
on  his  paying,  &.c.  It  is  really  an  affront  to  common  sense 
to  say  that  Davis9  s  claim,  ought  to  prevail. 

The  chancellor  has  given  his  ideas  at  large.  He  might 
refer  to  decisions  of  the  court  of  appeals,  which  if  there  be 
a  judgment  to  be  formed  from  decrees,  the  reasons  of  which 
are  not  assigned,  are  more  strict  with  respect  to  agree- 
ments set  up  against  the  intent  of  the  statute  of  frauds 
than  the  chancellor  has  ever  seen. 

The  chancellor  indeed  has  always  thought  that  it  would 
have  been  much  better  to  construe  the  statute  of  frauds 
strictly  against  contracts.  However  he  has  always  en- 
deavoured to  conform  to  decisions,  which  on  any  principle 
might  be  considered  as  binding  on  him.  He  lias  never  in- 
tentionally decided  against  any  decree  of  the  Lord  Chan- 
cellor of  England,  made  before  the  revolution,  or  even  any 
decision  of  Chancellor  Rogers,  which  hath  not  boen  con- 
troverted, unless  on  a  bill  of  review.  As  t:j  the  present 
case,  he  is  satisfied,  that  by  decreeing  a  dismission  of  the 
bill,  he  will  contravene  the  principle  of  no  decision  in  equi- 
ty, which  ever  hath  been  given.  Decreed,  that  the  bill  of 


341  CASES    IN   THK  (01  UT  OK  AI'l'KAl.- 

1808          the  complainants  be  di«mi--ed.  ami   the  defendant   be  tlis- 
iiu--<  i.  but  without  costs. 

l-'rnm   \vhirh   decree  the   complainant*  appealed    to  this 
court.     A  nil  the  csi-  .  tied  before  C'nvbK,  Ch.  .1.  Ni 

ciiui.suN,  and  (;\M  i.  J.  li\ 

Martin,  for  the  Appellants;  and  by 
J/(i>-],fi;  for  the  Appellee. 

Tin  l.'ot  1:1  l;«  rrscd  the  decree  of  the  court  of  thai;- 
CIT\.  and  (let  i eed  that  the  appellee  convev  tlic  land  in 
rpiesiion  tn  the  appellants,  in  fee  simple,  and  pay  to  them 
all  the  costs  in  the  court  of  chann-ry.  and  in  this  court, 
and  all  the  costs  incurred  by  J)<n-'n  at  law  in  deft-ndinj; 
the  action  of  ejectment  prosecuted  auainst  him  by  the  ap- 
pellee, and  that  the  appellee  restore  the  po—c— i.m  of  the 
land  to  the  appellants.  Also  that  an  account  be  tal. 
the  principal  moiiev  ;'.nd  interest  |.aid  by  the  appellee  for 
the  land,  at  the  respective  timr«  In-  p::id  i!ie  -ame.  ;:nd  that 
(he  appellant!  beihai--ed  therewith:  and  that  an  account 
aUo  be  taken  of  the  rents  and  profits  of  the  land,  which 
have  accrued  and  been  received  by  the  appellee  MMCC  he 
took  possession  thereof;  and  in  slating  the.  account  between 
the  |>arties,  the  appellee  be  charged  ihercwitii  at  i\. 
pectivc  times  he  received  the  same,  with  le^al  interest 
thereon;  and  that  the  balance  of  the  money  \\hich  may  be 
due,  on  the  adjustment  of  the  said  account,  be  paid  to  the 
party  to  whom  it  shall  be  due,  whether  appellant  i  <>;  :ij>- 
pellee.  at  the  time  the  appellee  shall  convey  the  land. 
And  that  the  chancellor  make  all  necessary  rules  and  or- 
tlri>  lor  having  this  decree  carried  into  full  and  complete 
c  fleet. 


|i  F.K.  M-Co'.,  Garn.  of  K:-    i  \,  \  Adm'v. 

Ai'i'K\L  from  IFo«/<i/i2r/on  County  Court     This  was  an 
atliK-hiiii ,ii   (111    warrant    under   the  act  of  1705,    en. 
.,,,,1  ,||(.  gJfiJagiti  ,„,  xvhich  the  wairai.-  .uih-d,  v.a-, 

made  by  the  admin  .  -taiin»;   that   A'iii^ld,    (the  ori- 

ginal ili-lendant.;  wa-  l>o"u  fi.lc  indfbted    to  her,  as  admi- 
i.i-»tiutrix,  on  tv. o  promissory  nole->  drav, n  by  King: 


Otf  MARYLAND.  340 

payable  to  her  intestate,  or  order,  &c.  The  attachment  1808. 
tvas  laid  in  the  hands  of  M'Coy,  (the  appellant,)  who  ap- 
peared, and  moved  that  the  proceedings  on  the  attachment 
might  be  quashed.  But  the  county  court  refused  to  grant 
the  motion,  and  judgment  of  condemnation  was  rendered, 
&c.  From  that  judgment  this  appeal  was  prosecuted. 

The  case  was  submitted  to  the  court  without  argument 

71  Buchanan,  for  the  Appellant 
Hughes,  for  the  Appellee. 

JUDGMENT   AFFIRMED* 


DAVIS  vs.  WILSON,  et  at.  DECEMBER** 

APPEAL  from  the  County  Court  of  Baltimore.     The  re- .  A  paper  certified 

•  in  a  record    trans* 

fcord  in  this  case  contained  a  bill  of  exceptions,  tendered  to  ".urpo.iinsfobe"^ 
the  associate  justices  of  the  county  court  by  the  defendant,  ^ILnat'th.'i1';1,-;'? 

•7  j  j  *    i«*it*ii  MI   iin.     iriuif 

(the  appellant,)  and  which  was  signed,  but  not  sealed,  by  a binof exwpt?ons 

ji  in  the  ca-e,  it  not 

tne  JUSllCeS.  appearing  that  the 

seaU  of  iho judge* 
T-i  >      •»-»    •         *•          i  of  tlie  court   below 

W.   Uorscy  and   Bnce,  for  the  Appellant,  contended,  ":>d  been  affixed  to 
that  there  was  a  material   variance  between  the  writ  and    The  court  of  ap. 

peals     having   re« 

the  declaration:  the  former  being  in  the  names  of  William  v;:"ed  «.i"JKment 

01  the  court  below, 

Wilson,  and  others,  and  the  latter  in  that  of  William  Wit-  "j^}1.6  f°""  ?" 


n    In 


inn  ilnnt>  >"S  »  material  va« 

son  alone.  liailce  be(w  en  thd 

They  were  proceeding  to  argue  the  points  raised  on  the  Jtoti^eiK^S 

bill  of  exceptions,  when  it  was  discovered  that  it  had  not  m&'a 

been  sealed,  as  before  stated. 

THE  COURT  were  about  to  reverse  the  judgment  on  the 
form  of  proceedings,  and  to  award  a.procedendo,  when 

W.  Dorsey  contended,  that  a  procedendo  ought  not  to 
be  awarded  in  a  case  where  the  court  do  not  reverse  on  a 
bill  of  exceptions. 

THE  COURT  considered  that  there  was  no  bill  of  excep- 
tions in  the  case,  the  seals  of  the  justices  not  being  affix- 
ed thereto;  but  there  was  error  in  the  form  of  proceeding, 
and  reversed  the  judgment  without  awarding  a.  procedendo. 

JUDGMENT   REVERSED. 

VOL.  rr.  44 


346  CASES  IX  THE  COVRT  OF  APPEALS 

1808  WAGNER  vs.  M'DoxAi.D. 

DEC  EM  HE  a. 

APPEAL  from  the  Orphans  Court-  df  Frederick  county." 
A  paper,  purporting  to  be  the  will  <,f  Michael  n'.,:--,iirt 
written  in  the  Dutch  lan^'i.v'e,  of  which  the  follow  in-'  U 

A  i**prr  w»i  «- 

hib«i.ai.>r  ,.co,<i  a  translation,  was  exhibited  to  the  orphans  court  tor  record 

fti  thr  lull     T  ' 

....•a  <;  by  the  appellee,   who  had  m  trried  Wiza'ip.th  Schrriner.  one. 

haii-    tm  n    MfBCd      J 

w.iVii.'ut  °^  tnc  'eo;ltces  therein  named,  vix.   -In  the  name  of  (ind, 
tb«ril"ri»  Amen.     If  I  should  not  come  to  you  anain,  my  son  Michael 
fi£Zr?U'er..!mi  Ntf-Hcr  shall  pay,  out  ,if  Christum  Wagner'*  bond,  which 
^r^me'io1'0";',',  I  have  from  him.  to  FMzahelh   Xchrcinrr  seventy 


cVmMM  Roether  thirty  pounds  in  the  year  179P,  the  10th  of  May. 

Kentucky,  and  it>  „,.  .     .  _r  .  .        .     ..    .  . 

tunirti.iin.iihm  he  1  lie  remaining  fatty  pounds  you  slmll  divide  amongst  yon; 
werk.  ikemftcr^-  that  is,  Michael  It'agneraml  John  IVagner,  and  Christian 

Held,  that  the   pa-    -mr  in         i  i  -i  i 

i  a  not  1,0   M  nziicr  and  h  aether  8  children,  and  Catherine  Scfiretncr  s 

njniiiivil  to  record  . 

•»  th«  uit  win  of  3  children,  and  the  money  shall  be  put  on  interest  till  they 
come  of  age.  Farther  what  I  vet  have  with  Christian, 
that  is,  1  cow,  1  house  clock,  bad  and  bedsteads,  clothes 
pres»9,  table,  copper  kettle,  bible,  of  these  Eve  Sherman 
shall  have  share  too  like  the  rest.  So  much  from  me. 

Michael  U  agne?. 
May  4th,  1795." 

A  citation  was  ordered  and  issued  for  the  representa- 

tives of  the  deceased,  &c.     Proof  was  made  of  the  hand- 

writing of  foichad  Wagner,  (deceased,)  and  that  he  was, 

in  the  year  1795,  of  sound   disposing  mind,  memory  and* 

understanding.     It   was   also   proved  that  he   lived  with 

Christian  H'agncr  in   Liberty  Town,    and  went,    to  Ken- 

tucky in  the  spring,  about  the  7th  or   8th  of  May   IT'.K'f, 

and  returned  to  Christian   Warner's  after  harvest  in   the 

same  year,  and  said  on  his  return   that  he  was  well;  that 

lie  continued  so  for  four  days,  and  after  that  he  lay  sick 

three  weeks,  whew  he  died.     The  orphans  court  decreed 

that  the  paper  should  be   recorded  as  the  last    will  of  Mi- 

chael Wagner,  deceased.     From  this  decree    this  appeal 

was  brought  by    Christian    nv/ijvjer,  who   (amoni;   others,) 

had  been  summoned,  but  who  alone  appeared  to  and  con- 

tested the  proceedings. 

The  cause  was  argued  before  CHA.SE,  Ch.  J.  BUCHANAN^ 
and  NICHOLSON,  J. 


OF  MARYLAND. 

Taney,  for  the  Appellant,  contended  that  the  paper  ex-  1808 
Itibited  was  to  take  effect  a>  a  will  it'  the  writer  did  not 
return;  and  as  he  did  return,  it  can  have  no  effect.  A 
will  to  take  effect  on  a  contingency,  has  none  if  the  con- 
tingency does  not  happen.  Famous  vs.  Lanoet  1  Fes. 
190.  S.  C.  Jimb.  557.  Lugg  vs.  Lvgg,  2  A'alk.  592. 
8.  C.  1  Ld.  Raym.  441. 

Shaaff.  for  the  Appellee,  contended,  that  it  did  oot  ap- 
pear that  the  appellant  had  any  interest  in  or  right  under 
the  will  to  justify  his  contesting  its*  being  admitted  to  re- 
cord, and  appealing  to  this  court  from  the  decision  of  the 
prphans  court.  He  admitted  that  the  orphans  court  were 
in  their  decision. 

DECREE    REVERSED, 


HAY,  ct  al.  vs.  CONNER.  DECEMBER/ 

APPEAL  from,  Baltimore.  County  Court.  The  appellants,  B,^!^/07^ai- 
t>y  their  next  friend,  brought  an  action  of  trover  in  that  chiidrfn^who'wew 
$ourt  against  the  appellee,  for  the  conversion  of  a  mulatto  y"aJ,^Mr,^°ave 
nuile  slave  called  James  Perry.  The  general  issue  was  ^ "^"c^p'ia^To 
pleaded.  The  facts  are  stated  in  the  following  opinion  of£,^™^h™^ 
the  county  court,  delivered  at  the  trial  in  February  1802,  and1  tVe"ves!ef  b£ 

iiitf  so:d  31  the  port 

py  lo  which  she  sailed, 

bj  lit  r  owners,  tlio 
»iave  WHS   put   by 

H.  RIDGELY,  Ch.  J.  In  this  case  the  evidence  offered  tbIl'eirdc^!aa'1vl,1"" 
to  the  jury  is,  that  John  Hoy,  deceased,  father  of  the  plain  ^V!,n!"hed  w'l'u 
tiffs,  in  his  life-time  executed  a  bill  of  sale  to  the  plaintiffs,  ^^'"mt^eier 
\vho  were  and  still  are  infants  under  the  age  of  twenty- one a^c'i^iho"m>w* 
years,  by  which  he  sold  to  them  a  negro  slave  by  the  name •vro«.!-cut!.^"llll''ijny 
of  James  Perry,  (who  is  the  slave  mentioned  in  the  dccla-  -^.V  y» ' ih^ai°"i»t 

\    it      i     T    i         IT          i  L     i  ^1  •      i-f     •     i  i          •         tin- UIH  valueof  the 

ration;)  tliat  John  Hay  departed  this  life  intestate,  leaving  si. v.—^cw.    that 

,.  •  ,   .     /•  i  .,  ,  •  ill*  adieu wai  well' 

his  said  infant  children  in  the  care  and  under  the  protec-  brought. 
tion  of  their  mother,  Martha  Hay;  that  Martha  Hay  after- 
wards took  upon  herself  to  hire  for  wages  the  negro  slave, 
James  Pern/,  to  the  defendant,  Captain  Conner,  to  per- 
ft»nn  a  voyage  from  Baltimore  to  Hamburg,  and  thence 
back  to  Baltimore,  as  a  cook  on  board  the  ship  Unary, 
which  the  defendant  commanded  in  the  voyage.  The 
slave's  name  was  signed  under  the  ship's  articles,  in  pur- 
suance of  the  said  hiring,  as  a  cook;  and  that  the  defend- 
ant promised  Martha  Hay  that  h«  would  bring  back  the 


348  CAPE?  IN  TIIK  COURT  OF  APPEALS 

1808,         n*;ro,  or  pay  her  a  generous  price  for  liini.  in   case  lie 
i-^~'^-/        should  not.      The  s-hip  Mart/,  on  licr  arrival  at  J/uinii, 

in  the  prosecution  of  her  V(.\a^c,  \\as  sold  i>\  the  orders 
«f  her  owner.  The  negro  .slave  was,  alter  the  sale  of  the 
ship,  put  by  (he  defendant  on  board  the  ship  /7</t///,i/.  Cap- 
tain fl'ecms,  bound  to  llall'anori\  and  the  defendant  fur- 
nished him  with  provisions  fur  said  \<>\;i-r.  |:  i»  .:drn;t:ed 
that  the  plaintifts,  at  the  time  of  the  hiring  of  the  slave  by 
their  mother,  were  the  legal  and  sole  proprietors  nl  the. 
Raid  slave,  and  that  the  mother  of  the  plaintiff*  was  noi  ap- 
pointed the  guardian  of  the  plaintiffs,  or  either  of  them,  by. 
their  father,  or  by  the  orphans  court,  and  that  they,  at  ihe 
lime  of  the  hiring,  were  under  the  age  of  fourteen.  It  is 
also  admitted,  that  an  action  wf  assumpsit  has  bern  in>ti- 
1uted  in  this  court,  and  a  recovery  had  for  the  sb\ 
wages  for  said  voyage,  against  the  defendant,  by  Martha 
Jiay;  and  now  the  present  action  is  brought  to  recover  the 
value  of  the  slave,  upon  the  ground  that  this  slave  has  been 
converted  by  the  defendant  to  his  own  u><'.  The  nn-at 
question  then,  upon  which  this  case  depends  is,  whether 
under  a  view  of  these  circumstances  the  defendant  is  guil- 
ty of  a  conversion?  If  he  is,  the  plaintiffs  are  entitled  to 
a  verdictj  if  he  is  not,  the  verdict  ought  to  be  lor  the  de- 
fendant. 

It  remains  to  be  considered  how  this  slave  came  on  board 
the  defendant's  ship,  by  what  authority  he  was  «l tipped, 
and  in  what  capacity  he  was  received  by  the  defendant? 
He  was  shipped  by  Martini  Iluy,  at  and  for  the  vragta  <>f 
J20  dollars  per  month,  for  the  voyage.  He  w:i~  ii  hy 

the  defendant  at  and  for  these  wages  to  perform  the  vnv- 
age.  "Who  was  the  contract  between?  The  defendant  on 
the  one  part,  and  Martha  Hay  on.  the  other — The  s.!a\e 
vas  no  party  to  the  contract.  It  is  a  mutual  contract  bind- 
ing both  the  parties;  on  the  part  of  Martha  Hmj,  that  the 
slave  should  perform  the  voyage;  on  the  part  of  the  defend- 
ant, that  he  would  pay  the  wages.  This  I  take  to  be  the 
substance  of  the  contract.  Then,  had  Martha  Jfa/  power 
to  make  this  contract?  It  results,  from  the  relation  is> 
which  she  stands  to  the  plaintiff-,  that  she  had.  She  is  their 
guardian  by  nature;  as  guardian  by  nature,  she  has  the  cus- 
tody of  the  persons  of  her  children,  and  the  management 
vf  their  personal  property,  and  she  is  accountable  to  them 
tvi  the  profits.  It  follows  thcu  that  s>U  has,  a  right,  anu\ 


OF  MARYLAND:  349 

is  bound  to  use  the  property  in  such  a  way  as  to  make  it  1808. 
roost  productive;  but  she  cannot  vest  the  right  of  property 
in  any  other  person,  or  change  the  species  of  property, 
that  being  in  her  children,  from  whom  that  right  cannot  be 
taken  without  their  consent,  and  they  arc  not  capable  of 
giving  that  consent  until  they  arrive  at  the  age  of  twenty- 
one.  I  hold  that  the  contract  is  valid  and  binding  on  the 
parties;  each  had  a  right  and  a  legal  capacity  to  make  it. 
"What  legal  obligations  are  imposed  on  Martha  Hay  by  this 
contract?  I  take  it  she  is  bound  and  answerable  that  her 
slave  shall  conduct  himself,  as  other  seamen  do  in  similar 
stations  on  board  a  ship;  on  the  other  hand,  the  defendant 
is  bound  by  the  contract  to  conduct  towards  the  slave  in 
the  same  manner,  in  every  respect,  as  to  other  seamen, 
and  if  he  deserts  the  ship,  Mrs.  Hay  is  liable  to  all  such 
losses  as  would  result  to  a  free  manner  who  should,,  under 
the  same  circumstances,  desert  his  ship.  I  mention  the 
contract  thus  particularly,  and  its  legal  operation  on  both 
the  parties,  to  show  that  this  slave  was  shipped  or  hired 
by  a  person  having  proper  authority,  and  that  the  defend- 
ant did  no  wrong,  and  was  justified  in  receiving  and  em- 
ploying him  in  the  manner  he  did,  and  so  far  was  not  guil- 
ty of  a  tort.  Is  there  any  thing  in  the  defendant's  conduct 
afterwards  that  can  make  him  guilty  of  a  tort?  Had  he  a 
right  to  send  the  slave  back  in  another  vessel?  If  he  had 
a  right  to  send  the  other  seamen  back  in  another  vessel,  he 
had  a  right  to  send  the  slave  back  in  the  same  way.  The 
act  of  congress  has  thought  it  a  reasonable  way,  and  it  is  a 
good  rule  for  us.  Did  he  pay  him  the  two  months  wages?. 
It  is  right  and  proper  he  should  not  have  paid  them;  if  he 
had  he  would  have  been  bound  to  pay  them  again  to  Mrs. 
//<«/,  with  whom  the  contract  was  made,  ferry  was  a 
slave,  and  could  do  no  act,  but  such  as  Mrs.  Huy  author 
rised  him  to  do.  The  defendant  put  the  slave  on  board 
Captain  Wttms^  bound  for  Baltimore,  to  be  brought  back; 
by  the  act  of  God  the  vessel  was  driven  out  of  her  course, 
and  compelled  to  go  to  one  of  the  Islands.  This  was  no 
vrong  by  the  defendant.  But  when  there,  Perry  makes 
his  escape.  Is  this  the  wrong  of  the  defendant?  We  think 
rot.  Suppose  Perry  had  ran  from  the  ship,  and  drowned 
himself,  would  the.  defendant  be  answerable?  "Would  it 
be  a  conversion?  No.  Suppose  he  had,  when  compelled 
to  go  to  this  Island,  committed  an  offence  against  the  lavts 


330  CASES  IN  THE  COURT  OF  APPEALS 

1808  of  the  state,  anil  was  imprisoned,  would  the  defendant  b» 
answerable?  No.  Suppose  the  >lavc  l.a-l  taken  a  knife 
and  cut  his  own  throat,  would  it  be  said  that  the  defend-. 

tint   ou»ht  to  have  been   standing  ahvavs   bv  to  arrest  the 

j 

blow,  and  that  he,  having  neglected  to  do  this,  is  ai.- 
able?  No.  I'pon  the  whole,  we  think  that  Martha  Hay 
Jiad  a  right  to  liire,  and  that  there  was  no  wroug  in  the.  de- 
fendant iu  receiving  the  slave  on  board  as  a  seaman:  that 
the  defendant  did  all  he  was  bound  to  do  afterwards 
to  ensure  the  return  of  the  slave,  and  if  he  deserted, 
it  was  not  the  defendant 'A  fault;  and  therefore,  it  is 
the  opinion  of  the  court,  that  the  defendant  is  not  guilty 
of  a  conversion  upon  the  facts  so  offered  and  admitted  tu 
be  proved  to  the  jury.  The  plaintifts  cxcepteil;  and  the 
verdict  and  judgment  being  for  the  defendant,  the  plaint ilfc 
appealed  to  this  court. 

The  cause  was  argued  before  CHASE,  Ch.  J,   BUCHA- 
NAN, and  NICHOLSON,  J. 

7?ricp,  for  the  Appellants,  stated,  that  the  principal 
e|iie»:ions  were — 1.  Whether  Mrs.  //«//,  the  mother,  uas 
guardian  by  nature,  if  so,  whether  as  sue  h  she  had  any  such 
power  over  the  property  of  the  children?  And  "2.  Admit- 
ting she  had  such  power,  whether  the  defendant  has  not, 
by  putiiun;  tKe  slave  in  the  custody  of  another  person  with- 
out the  knowledge  or  consent  of  Mrs.  //in/,  or  her  chil- 
dren, o\en  i-ed  such  an  act  of  ownership  over  the  »!:.• 
to  amount  to  a  conversion?  As  to  the  first  question,  he 
cited  /  :.  Co.  Lilt.  119,  b.  (note  B;  /frown'* 

Cicil  IMW,  131;  and  the  act  of  1793,  eh.  101.. 

Purvianre,  and  .V.  Chu$ft  Jr.  for  the  Appellee. 

Tin:  COURT  said,  the  action  ot   trover  was  well  brought* 
and  reversed  the  judgment. 

JUDOWKM     HI. \111SED,   AND    PUOCEOENDO    AWARDED.     ' 


FACET  vs.  BRAYTOK. 

r,;      ArrKAi.  from  Baltimore  County  Court.     Replevin  for  & 
'I  he  declaration  did  not  allege  any  damage  to  have 

'ii  »titr rt    0.  '  <•   in  Ceyif- 

1.1'.  h»Mi>K  '»!» 

..•s  Uut  IK  luck  it  Iruu  fk«  d*rUii:f-buu»c  ul  ibv  j'Uu.nn. 


OF  MARYLAND.  351 

l»een  sustained  by  the  plaintiff,  (now  appellee.)  At  the  1808, 
trial  the  defendant,  (the  appellant,)  prayed  the  court  to  di- 
rect the  jury,  that  as  the  plaintiff  had  declared  the  taking 
of  the  cow  in  question  to  have  been  in  Gay-street,  from 
the  dwelling  house  of  the  plaintiff",  it  was  incumbent  on 
him,  in  order  to  entitle  him  to  recover,  not  only  to  prove 
that  the  taking  was  in  Gay-street,  but  to  prove  that  it  was 
from  the  house  of  the  plaintiff  in  that  street.  The  court, 
(H.  Ridgely,  Ch.  3.)  refused  to  give  this  direction,  but 
did  direct  the  jury,  that  if  they  should  be  of  opinion  that 
the  defendant  took  the  cow  of  the  plaintiff  in  Gay  street, 
that  was  sufficient  to  entitle  the  plaintiff  to  recover.  The 
defendant  cxceptedj  and  the  verdict  and  judgment  being 
against  him,  he  appealed  to  this  court. 

Purviancc,  for  the  Appellant. 

Martin^  Winder,  and  Rogers,  for  the  Appellee. 

THE  COURT  concurred  with  the  county  court  in  the 
Opinion  expressed  in  the  bill  of  exceptions;  but  reversed  the 
judgment,  because  nodamages  were  laid  in  the  declaration. 

JUDGMENT   REVERSED. 


HOGMIRE,  et  al.  vs.  M'Cov.  DECEMBER*" 

APPEAL  from  Washington  County  Court.  The  appellants  tv?"r™ % cr' 'lftit£ 
brought  an  action  of  trespass  q.  c.  f.  against  the  appellee,  £l'ov^u,Lf  I'^M 
The  general  issue  was  pleaded,  and  plots  were  returned.  LT^STSS 

1.   At  the  trial  the  plaintiffs  offered    to  prove,    by  a^Ki^b™ 

•  .  iU    i    il  •  •  c  A.I       committed,      and 

Competent  witness,  that  they  were  in  possession  of  me  tW  the  defend** 
tract  of  land  called  Long  Timber,  mentioned  in  the  de^tretpaUcompimr* 
claration,  and  on  which  the  trespass  was  alleged  to  have  so  in  the  powe*- 

,  .          siou  of  the  plain- 

been  committed,  as  located  on  the  plots  by  the  plaintinsjtitr,  »t  the  place 

...  by  him  located  on 

and  that  the  defendant  committed  the   trespass  mentioned  thc  i)!ots  '»  »he 

cause— Held,   that 

in  the  declaration,    on  the  land  so  in    possession  of  the  s"cll.evil,leuce  WM 

admissible. 

plaintiffs,  at  the  place  located  by  them  on  the  plots.  This  )ro^Jebj'2'^ 
testimony  the  county  court,  (Clagett,  Ch.  3.)  refused  p^t^,  "he 
to  admit  to  be  given  to  the  jury.  The  plaintiffs  excepted.  !j£[;a"? **"? *£ 
9..  The  plaintiffs  also  offered  to  prove,  by  a  cpmpeteiflt  JS^l^SJ* ^S 
witness,  that  he,  the  witness,  \vas  present  when  the  tract  0^™^!'^'^ 
of  land  called  Long  Timber  was  originally  located  B*&\el«'u  ** 
taken  up,  and  that  the  tract  was  then  located,  as  now  lc-//l™that  t!!l°.'5»T. 

deuce  was  aJiiiis- 
^ime  to  proTC  the  grigiual  beginning  and  Ideation  of  the  tract  of  lanrf. 


353  CASES  IN  T1IB  COURT  OF  AIM'K  VLS 

1803.  cated  by  the  plaintiffs  on  the  plots,  and  then  prayed  tin* 
court  to  direct  the  jury,  that  this  testimony  was  admi-siM.-. 
to  pruve  the  original  IK- Binning  and  location  of  the  land, 
in  order  to  support  the  plaintiflV  action.  But  the  county 
court  refused  to  admit  the  testimony.  The  plaintiffs  ex- 
cepted;  and  the  verdict  and  judgment  being  against  them* 
they  prosecuted  this  appeal. 

Hughes,  for  the  Appellants. 

T.  Buchanan,  Brooke  and  Lawrence,  for  the  Appellee.' 

THE  COURT  dissented  from  the  opinions  expressed  by 
the  county  court  in  both  of  the  bills  of  exceptions. 

JUDGMENT    REVERSED. 


DECRMBKR.  CUSHMAN  vs.  SIM'S  AilmV. 

JySJSSS  APPEAL  from  Frederick  county  court.  This  was  an  action 
*'v"/o^'/m^,""rf  °f  ussHnijixit,  and  the  declaration  contained  two  counts — • 
',  .;t7r  The  first  for  one  year's  service  by  the  plaintiff,  (now  ap- 

•ti  •(£»•««  E^  pellant,)  as  an  overseer,  in  the  year  1791,  rendered  the  in- 
imi* dJr.MiJum'flir  testate  of  the  defendant,  (the  appellee,)  and  the  other  a 

thr  pi.  nt.tf  '•  ter-  .     _  .  .       : '  - 

Yic«  »i  *n  »vir-  quantum  mcrmt  for  serving  the  intestate  as  an  overseer  for 

•err,  (be    plaintiff  . 

r  ii  ,1  not  rrcortr  one  year.      The  general  issue  was  pleaded:  and  at  the  trial 

HIMIII  hi*  declara- 

t|on-  the  plaintiff  offered  in  evidence,  that  he  had  acted  as  over- 

seer for  the  intestate  during  the  year  1791,  and  proved  the 
value  of  such  services.  The  defendant  then  gave  in  evi- 
dence, on  cross  examination  of  the  plaintiff's  witness,  the 
declaration  of  the  plaintiff,  that  he  was  to  receive  of  the 
intestate  a  share  of  the  crop  made  on  the  land  for  his  ser- 
vices in  that  year,  and  that  the  plaintiff  had  received  his 
share  of  the  corn  crop;  but  the  defendant  offered  no  evi- 
dence of  a  further  agreement,  nor  of  what  share  or  propor- 
tion of  the  crop  the  plaintiff  was  to  receive,  or  that  the  de- 
fendant had  performed  his  part  of  such  special  agreement. 
The  defendant  then  prayed  the  court  to  direct  the  jury, 
that  if  thev  were  of  opinion  from  the  evidence,  that  there 
was  any  special  agreement  between  the  plaintiff  and  the 
defendant.'-  inte-tate,  for  In-  -ervices  as  an  overseer  for  the 
year  1791,  the  plaintiff  was  not  entitled  to  recover  on  the 
declaration  in  this  cause;  which  opinion  and  direction  the 
<ymrt,  (Clagclt  Ch.  J.)  gave.  The  plaintiff  cxceptcd;  and 


OF  MARYLAND. 

the  verdict  and  judgment  being  agiinst  him,  he  appea'ed 
to  this  court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  BUCHANAN, 
and  NICHOLSO.V,  J. 

'fancy,   for  the  Appellant,  cited   Payne,  ct  a',  vs.  Bet- 
comb,  2  Doug.  6J1. 


1,  for  the  Appellee,  cited  Exp.  138,  and  Hannan 
ts.  Lee,  1  llarr.  §*  Johns.  131. 

Tim  COURT  said,  that  in  the  case  of  Payne,  ct  al.  vs. 
Pacornb,  there  was  a  count  on  a  special  agreement,  and 
other  counts,  and  as  no  agreement  was  proved,  the  plain- 
tiff was  permitted  to  recover  on  the  other  counts. 

JUDGMENT  AFFIRMED. 


RUTTER  vs.  BLAKE.  DECEMBER.' 

APPEAL  from   Jlnltimore  county  courfr.     The  appellee 
brought  an  action  of  assumpsit  against  the  appellant,  on  a  kr%oa*i»*rtimii 
promissory  note  drawn,  on  the  4th  of  July  1800,  by  him  t'!eml'Vpon:i7h' 

In  t  i      n     .  1  ii  •  r       crtvlitofsui-h  affli  - 

Ettward  nutter,    deceased,  whom    he  survived,   for  motion,  and  they 

Si  012  50,  payable  sixty  dajs  after  date  to  £7cfa?<m?  /o&n-  tp   be    different'  . 

ill-  i  i    i       rf-if  *r       /"»  tUepu.e'msc-r  niiy 

son,  or  order,  and  by  him  endorsed  to  friuiam  MacCreen/,  it  mm  the  g<,0(fs 

i  •  i  i    i        ,»  ii  MII  an:1  1'ccovt'r   back 

or  order,  and  by  him  endorsed  to  the  appellee.  I  he  ge-  the  money,  in  an 
neral  issue  was  pleaded:  and  at  the  trial,  the  plaintiff  pro-h:»J  an.i!ective<!,- 

1  ,  or    he    may   hava 

duccd  and  read  the  note  in  evidence.    The  defendant  then  h;a    aeti">  *"'»- 

out  a  return  uf  the 

oTered   in  evidence  an  airreement  made  between  him  and  w<i<,  if  he  pivd 

nrtnf  to  thetefier 

the  plaintiff,  vi/..  That  the  promissory  note,  declared  on  ]}^o'fite(jIuT  aro 
in  this  case,  was  given  for  goods  purchased  by  the  defend-  t«f  iV{,s'  a'tm-mln* 
ant,  and  E.  Rulter,  (since  deceased,)  of  the  plaintiff.  That  ft1"  £eiev«u"£ 
tlie  defendant,  in  the  trial  of  this  cause,  may  incjuire  into  0nTjo«rn^  tot 
and  oiler  evidence  of  the  consideration  of  the  note,  and  be^unwumi''  ana 
avail  himself  of,  the  want  of  consideration  for  the  wliole,  or  mail,  he  nay**. 

c  ,.  e    ,,  .)          i     ,•        i  •    i   ,    •          i     coier     hack      ths 

any  part  of  the  note,  as  fully  as  tne  detendant  might  legal-  money  pokf.  IB  *a 
ly  do,  it  the  note  had  been  originally  given  by  T.  <$•.!?.  fad  and  reeeiTet^ 

Gutter  to  tlie  plaintiff,  and  the  plaintiff  had  brought  his  ac-«°  A  whu-e  the 

horse  is,  and  he  U 

tion  as  pavee  of  the  note    against    the   defendant.      The  »ot  b''u"<i  to  it- 

1     -  turn  the  horse. 

defeofant   further    offered    evidence  to    prove,    that    he    But  '/  a  «r'^« 

no    iidtu-e    to    \, 

and  "E.  Ratter,  on  the  1st  of  March   1800,  at 


sells  him    for  halt' 

what  he  ptve.  R  ha*  elected  to  aLLJe  by  hjj  contract,  and  lie  cannot  rejort  to  A  to  n^ake  yuod  tho  dil«'. 
tetKHue  of  |>i'ice.  .  '   >• 

VOb     II  4J 


-i  CASES  IN  THE  COOIT  OF  APPEALS 

1808.  county,  purchased  three  bales  of  blue  Gucrraha,  and  that 
the  note,  with  the  indorsements,  was  given  by  T.  $•  E. 
flutter  to  the  plaintiff,  to  secure  the  payment  of  the  pur- 
chase money  of  these  goods.  That  E.  flutter,  since  the 
eiecution  of  the  note,  died;  and  that  T.  <$•  E.  flutter  did 
not,  at  the  time  of  the  sale,  or  at  any  time  previous  to  the 
arrival  ot  the  goods  in  the  H'est  Indies,  as  hereafter  stated, 
examine  the  goods.  That  T.  »$•  E.  flutter  shipped  the 
goods  to  the  Island  of  Currocoa,  in  the  If  cat  Indies,  and 
there  sold  them  on  the  2d  of  April  1800,  for  and  on  their 
account.  That  the  three  bales  of  goods  were  not  blue 
Guerrahs,  but  goods  of  a  different  and  inferior  quality. 
That  T.  4*  E'  Rutter  had  sustained  damage  and  loss,  by 
reason  of  the  false  representation  and  warranty  made  by 
the  plaintiff,  in  the  sale  of  the  goods:  The  plaintiff  then, 
prayed  the  court  td  direct  the  jury,  that  if  they  should  be 
of  opinion,  that  the  defendant  and  E.  Rutter  did  receive 
and  make  sale  of  the  goods  in  Currocoa,  on  their  own  ac- 
count, and  for  their  own  use,  the  defendant  is  not  in 
law  entitled  to  any  deduction  for  any  loss  or  daiua_ 
tained  by  the  defendant  and  E.  Rutter^  in  consequence  of 
any  warranty  of  the  goods  by  the  plaintiff.  The  county, 
court,  (H.  flidgefy,  Ch.  J.)  delivered  the  following  opini- 
on: Generally,  in  the  sale  of  goods,  if  the  seller  affirms 
them  to  be  of  a  particular  quality,  and  the  buyer  receives 
them  upon  the  credit  of  this  affirmation,  and  they  after- 
wards appear  to  be  different  from  what  they  were  affirmed 
to  be,  the  purchaser  may  return  the  goods,  and  recover 
back  the  money,  in  an  action  for  money  had  and  received, 
or  he  may  even  have  his  action  without  a  return  of  the 
goods,  if  he  give  notice  to  the  seller  where  they  are  depo- 
sited. As,  where  A  sells  a  horse  to  B,  aflirminu;  him  to 
be  sound,  B  receives  the  horse,  and  sets  out  on  a  journey, 
but  finds  the  horse  to  be  unsound,  and  leaves  him  ou 
the  road,  he  may  recover  back  the  money  he  paid  for 
him,  in  an  action  for  money  had  and  received,  if  he  gives 
notice  to  the  seller  where  the  horse  is,  and  he  is  not 
bound  to  return  the  horse.  It  was  the  conduct  of  the  sel- 
ler that  was  the  original  cause  of  the  horse  being  at  a  dis- 
tance and  out  of  his  possession,  and  he  must  put  up  with, 
the  loss  and  inconvenience.  So  if  a  merchant  in  Balti- 
more buys  goods,  the  seller  warranting  them  to  be  of  a 
particular  description  of  quality,  and  the  merchant,  with- 


OF  MARYLAND. 


853 


Oui  examining,   sends  them  to  the    West  Indies,  where 
upon  opening  he  finds  them  not  to  be  of  the  quality  war- 
ranted, he  may  store  them,  give  notice  to  the  seller,   and 
recover  back   the  money  paid  for  them,  in  an  action  for 
money  had  and   received;  or  he  may  bring  his  action  on 
the  special  agreement  of  warranty,   and  recover  damages 
for  the  full   amount  of  the  injury  he  has  sustained,  nor  is 
he  obliged  to  return  the  goods,  or  put  himself  to  any   fur- 
ther expense  or  trouble  about  them.     This,  I  take  it,  was 
exactly  the  defendant's  situation  when  the  goods  arrived 
in  the  West  Indies.     He  had  his  option  to  do  one  of  two 
things;  first,  to  refuse  to  keep  the  goods,  declining  to  go 
on  with  the  purchase;  or  secondly,  to  accept  the  goods  in* 
lieu  of  those  sold    him,  and  to  confirm  the  purchase  by 
going  on  to  sell  them,  and  receiving  the  amount  of  sales. 
"What  does  he  do?  Why  he  adopts  the  latter  of  the  two 
alternatives — He  sells  the  goods,  and  receives  the  money— 
not  as  agent  for  the  seller,  that  is  not  intended,  but  upon 
his  own  account.     This  mode  of.  proceeding  by  the  defen- 
dant, however  hard  it  bears  upon  him,  I  am  of  opinion  has 
deprived  him  of  a  remedy  here  upon  the  warranty.     Let 
us  suppose  A  to  sell  a  horse  to  B,  with  warranty  that  he 
is  sound.     B  receives  the  horse,  and  riding  him  home  dis- 
covers him  to  be  unsound,  and  says  nothing  of  this  to  A, 
but  sends  the  horse  to  vendue,  and  sells  him  for  half  what 
he  gave  for  him.     Here  he  has  elected  to  abide  by  his  con- 
tract, and  I  take  it  he  can  never  resort  to  the  original  sel- 
ler  to  make  good  the  difference  of  price.     I  think  the 
cases  I  have  put  are  similar  to  the  case  before  the  court* 
and  that  the  warranty,  if  any  made,  cannot  avail  the  de- 
fendant so  as  to  entitle  him  to  a  deduction  of  the  warranty 
for  any  damage  or  loss  by  him  sustained.     Suppose  the 
plaintiff  had   received  the  goods  on  sale,  with  warranty  to 
him,  and  has  paid  the  amount— r-if  he  does  not  recover  of 
the  defendant,  neither    can  he  recover  of  the  person  who 
sold  them  to  him;  the  defendant  has  put  it  out  of  the 
plaintiff's  power;  for  the  defendant,  having  sold  the  goods, 
the  plaintiff  cannot  return  them,  or  give  notice  to  the  per- 
son who  sold  them  to  him  where  they  are.       Therefore  it 
may  be  that  the  plaintiff  paid  ihe  price  of  first  quality 
goods;  and  if  he  should  not  be  permitted  to  recover  against 
the  defendant,  he  will  lose  the  difference  of  price  between 
goods  of  the  best  and  goods  of  inferior  quality.     Whereas^ 


1808 


CASES   IN  THE  COURT  OF  AITF.AT.S 


1F.08 


Prury  &  llcnnitl 
Xtgru  Grace 


liftd  tin-  ;;iioi!*  not  been  ili»|'0>i-d  of  hv  tl.e  defendant,  tl»t 
plaintifl  could  have  rcli.i  m-d  n  ;.:i\en  notiie  \\l,ne  the 
<: i iot! -  \\cre  s'ored.  ami  >'  «IMT  fioin  ti.e  JIIM.II 

v.  (in  sold  to  him.  It  i:»  tine,  tl  at  ii  at  the  lime  of  u.akii^ 
thi->  note  any  part'u nlar  a  ;icrnn-m  or  understanding  took 
|)|RCC  between  the  i  laintifl',  or  his  a^ent  J.'/n  (  m  >\i,\  :.nd 
the  defendant,  that  a  ded action  should  be  made  on  ac- 
cnunt  of  anv  dt-li-ct  in  the  i:<iotls,  that  the  deleiulaiit  I  as 
hi>  i-rinedy  in  equity  by  making  them  ]  arfir*.  «r  in  t/iia 
C'liirf.  if  he  can  prove  the  Dole  uas  delivered  with  MH  h 
intention  or  understanding  of  the  parties.  The  defendant 
excepted,  and  the  verdict  and  judgment  being  ;. 
him,  he  brought  this  appeal. 

The  case  was  submitted  to  the  court  without  argument. 

//.  Dontnj,  for  the  Appellant. 

J'urviunce  and  A'.  Chuset  Jr.  for  the  Appellee. 

J  j         JUDGMENT    AFHHMi:i> 


DRVRY  &.  BENNETT  vs.  NEGRO  GRACE. 


'•      APPEAL    from    Sliwe-Anmdcl  Countv  Court.     In  thh 

¥»  '  I*'H       U^tTl^lH  » 

fmit"ri».ri",",  ',"''i  -  case  the  appellee  l*'t'nioned  for  her  freeilom,  and  the  fol- 
»'!  '»n  ",'•".'!  n'i..ry  lowing  ca-«  (I  for  the  opinion  of  the  county  court. 

'  'nod,  being   |o-Moed    (I   M:I.<!IV   in-.-.io    |] 
.nd  among    others  of  the   petitioner,    on  the    10th   i>l 
i.mjK-ri  H  bruary  J7t8,    duly  made  1  is  lad  \\ill  and  testament. 

wiif"ihurfil^idand  taining  this  clause — '•!  ilevise    ;:nd  liequeatli   the  whole  of 
f» 'pwJv.'.'i ''' ,'!!  my    projierty,  i  eal  and  personal,    to  my   beloved   da>:. 

i'iai  tin'  tnii  i-ii'.'i     ,"  '..  i.i  ii  i      •         r 

,i  HI,-  i.-,t,i,,r  i,  Mary  .'inn  //oo«,  to  her  and  her  heirs  lor  ever,  and  ni 
••chhMrhtiMi  i«  case  slic  t/i'f.s  iritlioiit  lunfnl  ?«4»c,   then  the   whole  of  niv 

•  d   by   tome  .  J 

i.ii.-0i:«*.         van!  property  is  to  be  possessed  by  my  dear  \viU-  .//i»,  dur- 
*    in  '  her  v,  idouhood,    and    no   longer,  and  at  her  death  or 

••I      di  »i»  •       the  . 

vhoi-  of  my  pr.^  Qiarriaee  to  be  sold  at  public  sale,  and  five  hundred  pounds 

.     rv»l     rn-l  ' 

i«~™  '.uurhu r  currcnt  money,  out  of  the  money  arising  therefrom,  to  be 

>l  W,  to  »„-,  »nd 

1  "ii  in  r»«r  t'i'  ;.  •-"'  tircijH  ny  ii  to 

W  fumt m il  by  ni)  ri«nr  jr/Vr  y<.  iliirinf  l.rr  trw/cnrA"  !•  IT  nmni»(rr, 

•••  •'  »'  |  ulih'r  <:il<  .  iin.l    tin-  iii'iin  )  UMVI 

nnmarri'H.  (|,,|   »,•• 

•fcwr  •  •  •!    HIII    It  I!. 

H,C  ami  N- 

limiution  iii  •  .  !••  itu'r 

-  WllllOlit    ;.«..!.-..   U-.   J'  t-,:ilU 


OF  MARYLAND.  357 

paid  by  my  executor  to  mv  nephew  James  Cvmmins,  or  to         1808 
liis  heirs,  (if  anv,)  and  the  balance  thereof  equally  divided       ~v 

Drui-y  &    r.eiNietl 

between  my  brother  J fop f well,  and  sisters   Cassandra  and  v* 

J  _         .Negro  Grace 

.7m/,"  &c.  The  testator  died  on  or  about  the  3d  of  April 
3788,  without  having  revoked,  or  in  any  manner  changed 
his  will.  Scmud  Jtttrrlsort,  the  executor  named  in  the 
\\ill,  renounced  the  same,  and  letters  of  administration 
were  granted  to  Dntry,  oneof  the  defendants.  After  the 
deal!)  of  the  testator,  J\Inry  Jinn  JJ ood  his  daughter  and 
legatee,  obtained  possession  of  the  negro  slaves;  and  being 
so  possessed  of  them  and  entitled  to  them,  on  the  9th  of 
October  1800,  duly  made  her  last  will  and  testament  in 
writing,  in  which,  among  other  things,  i*  as  follows:  "My 
•will  and  desire  is,  that  all  my  negroes  shall  be  free." 
The  testatrix  died  on  the  7th  of  January  1801,  in  the  seven- 
teenth year  of  her  age,  unmarried;  and  without  having  any 
issue  of  her  body,  and  also  without  revoking  or  in  any  man- 
ner changing  her  will.  After  the  death  of  Zcbcdce  ff'ood, 
Jinn  his  widow  intermarried  irtth  one  Richard  Brown,  be- 
fore the  death  of  Mary  Ann  Wood,  And  survived  Mary  .flnn 
Wood,  and  is  now  in  full  life,  and  has  received  her  thirds  of 
the  personal  estate  of  Zebedce  Hood.  Hopewelland  Cassan- 
dra I  food,  the  brother  and  sister  of  Zcbedee  Wood,  and  lega- 
tees named  in  his  will,  survived  Mary  Jinn  If  ood,  and  are 
now  alive,  and  Jinn,  the  sister  and  legatee  of  Zebedce, 
died  before  Mary  Jinn  Wood,  leaving  issue  still  living 
The  defendants  have  obtained  possession  of  the  petitioner, 
and  have  acquired  and  are  invested  with  all  the  right,  ti- 
tle and  estate,  that  Hopewell,  Casvandru  and  Jinn,  had  in 
the  petitioner,  and  are  to  be  considered  in  the  same  light 
tiiat  llopewcll,  Cassandra  and  Ann  would,  were  thej  the 
defendants  in  this  cause.  On  this  statement,  the  county 
court  gave  judgment  for  the  petitioner,  and  the  defendants 
brought  this  appeal 

The  case  was  argued  before   CHASE,  Ch.  J.  BUCHANAN, 
and  NICHOLSON,  J. 

T.  Buchanan^  for  the  Appellant,  stated  that  the  ques- 
tion was  upon  the  construction  of  the  will  of  Zcbe.dce  Wood,  ' 
whether  Mary  Jinn    It  ood  took  an  absolute  estate  under 
the  devise  to  her  in  the  will,  or  was  it  not  an  executory 
devise  to  Jinny  the  wife  of  the  testator? 


358  CASES  IN  THE  COURT  ,OF  APPEALS 

1808  To  show  that  it  was  an    executory    <levise,    lie    cit 

*—  v—  '       JMk.  Ccin    173.   '2  t'f  arm's  Ex.    l)rv    1,  73.    Nichols  vt 
"  IIom>cr,  1  /'.    /////*.   I'.iD.      'J'urL"t  rs.   finunt,    Ibid. 

KtkTlU  OtM-T 

Hughes  vs.  Sayer,  Ibid  534.  J'inbury  vs.  Elkin,  Ibid 
564.  Forth  \-  y  (  haj.num,  Ibid  663.  .Atkinson  vs  Hutch- 
inwn,  3  P.  /////*.  2;i8.  Lampleij  rs.  lllou  rr,  5  .tf/A-.  S9G. 
AYi/y  rs  Fowler,  6  liro.  P.  ('.  :>(][>.  Uooilt  title  vs.  Ptgiltn, 

iZ.  7.  fl.  r:n.  mikinson  vs  Foutl*  7  T.  /.'.  5.i».  floe  r». 
Jfffery,  Ibid  585.  Fiarnes  E  >  .  279,  f37G.;  7)oe  t». 

e,  I  7*.  A1.  598;  $•  Trtijjord  vs  Jtochm,  3  .4/A-.  44'J 


Johnson,  (Attorney  General,)  for  the  Appellee,  con- 
tended that  a  devise  over,  after  a  failure  of  issue  general- 
ly, without  restrictive  words,  was  not  an  executory  devise; 
and  that  there  was  no  executory  devise  in  this  casetow?mt, 
the  wife  of  the  testator.  He  cited  Love  v»  Wyndham,  1 
Lev.  290.  Pcarse  vs  •  Ltn-r^  1'ullex.  29.  Earl  cf  Stafford 
ts  Buckh-y,  2  I'ts.  ISH^ft^er  vs  Lloyd,  1  Ld.  liinjw. 
523.  Jicauclcrk  vs  JJormajp  dtk.  308,  312.  Saltern  vs 
Saltern,  Ibid  37G.  jhrfficld  vs  I*rd  Orrery,  3  Jilk.  287. 
Lanesboroitgh  ts  Fox,  Ca.  temp.  Tall).  2G2.  Fearne,  322, 
325,  341,  159.  2  Bac.  M,  7G,  77.  and  Duvidge  vs  Clia- 
ney,  4  //ar.  <$•  J/»//e?i.  393. 


CHASK,  Ch  J.  delivered  the  opinion  of  the  court.  The 
question  to  be  decided  by  the  court  in  this  case,  arises  under 
the  will  of  Zcbcdee  Il'ood;  what  estate  did  Jinn  Wood,  the 
widow  of  Ztbedcf  Wood,  take  under  the  will? 

It  is  a  ptinciplc  generally  recognized  by  the  courts  of 
law  and  equity,  and  the  court  think  well  established,  that 
where  the  lin.itation  over  is  in  fee,  after  an  indefinite 
failure  of  issue,  it  is  not  good  as  an  executory  devise,  because 
of  its  tendency  to  create  a  perpetuity  by  rendering  property 
vnalienable.  In  this  case  the  limitation  over  is  to  Jinn 
J/ooJ,  du  i  ing  her  widowhood,  and  at  her  death  or  mar- 
riage, to  be  sold,  &c.  It  is  stated  that  Jinn,  (he  widow, 
married  during  the  life  of  Mary  Jinn  Wood,  the  first  de^ 
visee,  and  is  now  living. 

In  expounding  wills,  the  first  and  great  principle  to  be 
observed  is,  that  the  intention  of  the  testator  is  to  prevail 
unless  such  intention  is  opposed  by  some  rule  of  law.  The 
only  rule  of  law  which  is  supposed  to  stand  in  the  way  in 
this  case,  is  that  which  restrains  the  testator  from  limiting 


OF  MARYLAND;  359 

his  estate  in  such  manner  as  to  create  a  perpetuity;  and  if       1808 
that  is   no  obstacle  in  this  case,  there  is  nothing  to  prevent 
the  testator's  intention  from  being  effectuated. 

The  limitation  over  to  dun,  during  her  widowhood, 
plainly  evinces  an  intention  in  the  testator  that  she  should 
be  benefited  by  the  devise  to  her,  which  could  not  be  the 
case  if  her  interest  could  not  vest  until  the  Unrestricted 
failure  of  issue  of  Mary  Ann,  during  the  widowhood  of 
Jinn — a  mere  possibility,  and  too  remote  to  be  in  the  con- 
templation of  the  testator. 

The  limitation  over  to  Jinn,  during  her  widowhodd,  con- 
stitutes a  good  executory  devise,  because  it  was  to  take  ef- 
fect on  the  contingency  of  Mary  Jinn  dying  without  leav- 
ing issue  at  the  time  of  her  death. 

The  only  consequence  which  can  result  from  Jinn's 
inarrying  in  the  life- time  of  Mary  Jinn,  is  that  the  remain- 
der ovei'j  after  the  death  or  marriage  of  Jinn,  did  take  ef- 
fect immediately  on  the  death  of  Mary  Jinn,  and  such  event 
did  not  change  or  alter  the  quality  or  nature  of  the  estate 
created  by  the  first  limitation  over  to  Jinn,  nor  did  it  de- 
feat the  remainder  over. 

The  court  are  of  opinion,  that  the  judgment  of  the  coun- 
ty court  be  reversed. 

* 

JUDGMENT  REVERSED. 


SHORTER  vs.  BOSWELL.  DECEMBER." 

ArrE\t  from  Charles   County   Court.     The   appellant  ,  .  in  "petition  for 

JrpttQOirij     tnt?  TIM- 

exhibited  to  that  court  her  petition  for  freedom  against  the  ^J^.'K"  °,!?h 


witness    was  held 
to    he    competent 


1.    At  the  trial  the  petitioner  offered  to  read  in  evidence  lunmund^i^ 
to  the  jury,  the  deposition  of  Mary   Lancaster,    taken  by  o^the^tTt'i"^"; 
consent  of  the  parties,  on  the  24th  of  August  1803;  where-  bitdM™  know' 


in,  to  the  first  interrogatory   propounded    to  the    witness,  kMvfedx*    °ana 
viz.     ''Did  you  know  Martha,  or  PatL    who  formerly  be-  *eothvth«ma* 

,,,,.*._  «.f  P  S."      As  alM> 

longed  to  captain  John  Lancaster,  and  from  whom  did  he  dm  pet  of  the  <fe. 

get  Patt:"  she  answered,  '-that  she  knew-Patf,  and  always  *>'"""  °  ""  "'''''« 

•      his  mother,  in  her 
it  was  generally  reported,  and^she  always  understood,  that  a  woman  named  P  S  Jine"'""  the°fVimi'ly 

A.-ec..r.l  book  «.  C/iarl-t  i-oiwy  court,  containing  the  certificate  and  affldivif  of  a  priest  in  1702. 
lh.it  he  hid,  in  I'.il.,,,  .y,,.-..»r  .Mir,/  3  county,  ii.arriej  «  nc-,-.>  ,u,n  named  L  /?,  to  a  v  1*1  woman 
Tunned  E  S  both  .  -wiiu*  ot  IV  R,  ,„  ,m  I  nit  of  a  ,,  -„.,.  ' 


. 
aad  the  usue  l>^  U»at  awnase,aud  wa»  tttui  10  be  ad«i»i£i!o  r\>d«ice 


360  CASES  IN  Till:  iNM'Ii  ; 

und.v~''»'»'l  she  came  fro-n  Kap't't-l  AV  •/'••,  lint  did  no' 
know  it  of  her  own  knowledge,  and  heard  that  >!;(•  went  by 
tin-  name  of  Putt  .\"i  >,••;/ 1 ."  Thij  defendant  olijcctcd  t<» 
the  wonU  "and  ahr.ivs  understood  that  she  came  from 
linjthncl  Xcale,  but  did  not  know  it  of  her  own  knowledge, 
and  heard  that  s»h?  went  by  the  name  of  Patt  AV/or/fr,"  as 
not  being  competent  evidence,  and  the  county  coui: 
tained  the  objection,  and  refused  to  let  that  part  of  the  de- 
position be  read  to  the  jurv.  The  petitioner  excepted. 

The  petitioner  then  offered  and  irave  in  evidence, 
by  Thomai  Litncattcr,  that  his  nrnher,  M'try  Lancastfr, 
v as  dead.  An»l  also  offered  to  prove  by  the  same  wit- 
nesp,  "that  his  mother,  in  her  life-time,  told  him  that  it 

,"ncrall}-  reported,  and  she  always  understood,  that 
a  woman  named  Pall,  or  Martha,  came  to  the  family  of 
John  Lancaster  from  the  family  nf  Rnphurl  \mlr,  of  AV/////- 

'i  county."  lint  the  defendant  objected  to  it,  as  in- 
competent and  inadmissible  ^vidence;  and  the  county  court 
were  of  opinion  that  the  same  was  not  competent  or  ad- 

iie  evidence,  and  refuse*]  to  let  it  go  to  the  jury.  The 
petitioner  exccpfed. 

S.  The  petitioner  then  offered  and  gr.ve  in  evidence,  that 
she  was  the  daughter  of  a  woman  named  ttrlliji  who  \\as 
the  daughter  of  a  woman  named  .Sflra/;,  who  was  the  daugh- 
ter of  a  woman  named  Belly ^  who  was  the  daughter  of  a 
woman  named  Martha,  or  /'«.'/,  who  was  held  in  servitude 
by  John  Lancaster,  of  C/iarlc.i  county,  and  that  Patt  un- 
called Pali  S/iortn;  and  had  two  sister*,  namely  Man;, 
uh'o  belonged  to  Eiticard  \KI'<\  and  Janr,  uho  belonged 
to  Rosti'dll  .Vr,//r,  and  that  /.'  krurd  and  Jtosin-fl  \catc  were 
the  sons  of  ,1nlh.)ity  AV./,',,  of  Saint  Mary's  county,  who  di- 
ed about  the  year  172;"?.  The  petitioner  ;\\-n  -;a\e  in  evi- 

.  that  John  l.anca^cr  married  Elizabeth,  (lie  daugh  • 
ter  of  Ittijthail  \nili\  \\l\o  was  aUu  the  >on  of  .-Intliont/ 
A'fo/c,  and  that  Itnrthu,  or  Pall,  was  given  to  Jo/i.t  f.an- 
r.aslcr  bv  /,  -rfc;  that  John  Lte  ^arafit 

named,   to   7/r/i/v/   Dri^i-s,  of    Charles    county,  de- 

!,  'who  intermarried  with  Ilenrirtta,  the  daughter 
of  Joi.-  I  ler-,  that  /)ip:^cs  sold  /;/•////,  tlu-  d;rj-htcr 

of  A'*/™//,  to  tlte  delVndant,  /!  >  ":;m:l  tli.if  th«-  petition - 
«r  \\as  born  of  Jktttj,  aft-.-r  the  sale  tifhcr  mother  to  the 
di-lVndaiit.  The  petitioner  then  produn  <  ord 

uf  Ctiarlei  county  court,  aud  offered  to  read  in 


OF  MARYLAND.  S(U 

dence  an  entry  made   in  the  said   record,   in  folios   225         1808. 
and  226,    to  prove   the  existence   of  a  free  white   woman      ^•'•Y—— ' 

named  Elizabeth  Shorter,  in  the  family  of  a  certain  \ViUl~  »•» 

BonNtt 
(tin  Roswcll.  of  Savti-Mary's  county,  and  that  she  married. 

a  black  man  named  Little  Rubin,  the  servant  of  Roswell, 
ami  had  by  him  three  daughters,  namely  Mary,  Jane  and 
Afurtlw,  and  that  .Elizabeth  Shorter,  and  her  husband, 
were  given  by  Roswell  to  Jlathony  Neale,  and  that  Neale 
married  the  daughter  of  RoswclL  The  entry  was  as  fol- 
lows: 

"At  the  request  of  Mr.  Anthony  Ntale,  the  following 
certificate  and  deposition  were  recorded:  Maryland,  ss. 
Saint-Mary's  county.  These  are  fo  certify,  that  in  the 
year  1681,  or  near  about  that  time,  I  Nicholas  GeiiHch, 
Priest,  the  subscriber  hereof,  did  join  together  in  the  holy 
estate  of  matrimony,  according  to  the  then  law,  a  negta 
man  named,  to  the  best  of  my  remembrance,  Little  Robin, 
to  a  white  w:iman,  whose  name  was  Elizabeth  Shorter, 
which  couple  all  that  time  were  both  servants  unto  Mr. 
7 1 'if Ham  RosweU,  deceased,  and  was  after,  as  I  am  in- 
formed, disposed  of  by  the  said  jfo*#>e/?irotb  Mr,  Anthony 
Ncak  of  Charles  county.  Certified  under  mj  hand,  this 
15ih  day  of  June,  Anno  1702. 

"Nicholas  GeuiicL" 

"Memorandum.  The  day  and  year  above,  came  before 
me,  Mr.  Geulick,  and  made  oath  upon  the  Holy  Evange- 
list, that  the  above  aflidavit  is  the  whole  truth  and  nothing 
but  the  truth. 

"Jurat  coram  me, 

'  'Joshua  Guibert.  *' 

"•Maryland,  ss.  St.  Mary's  county.     Emma  Roswell, 
widow,  aged   seventy  years,  or  thereabouts,  being  sworn 
upon  the  Holy  Evangelist,  declarcth  upon   her  oath,  that 
she  the  said  deponent  was   present  at  the  marriage  of  the. 
abovesaid    couple,   and  that  the  ceremony  was  performed, 
by  the  abovesaid  Mr.  Nicholas  Geulich,    Priest,  and  that 
the  negro  man's   name  vas  Little  Robin,   and   the  white 
woman's  name  Elizabeth   Shorter;  and   that  they  were, 
at  the  time  of  their  being  married,    both  servants  unto 
this  deponent's  husband,  JfrWium  Roswell,  deceased,  and 
bv  him  given  and  made  over  and  delivered  up  unto  An- 
thony Nfale,  upon   marriage  of  the  said   Neule  with  Eli- 
zabeth, the  daughter  of  said  ftoswdl,  and  have  remained 
VOL.  n.  46 


302  CASE*  IN  THE  COURT  OF  APPEALS 

1808.         In  (lie  said  A'eale's  seiVur  «-xer  since;  and  that  alter  the 
marriage  of  the  said    negro  man   and  white  \\oman,  the 
paid  whit*-  woman  had  throe   mulatto  girl  children,    named 
ind   Martha,  who  are   now  living  lo  the   best 
of  this  deponent'^  knowledge. 

"This   13th  day  of  June   Anno  1702.     Jurat  cornm 
me. 

'.mi  Ctii: 

Maryland,  St.  Jl/i/n/'s  county,  ss.  ( Kin«  and  Queen 
parish J  June  6,  1702.  Then  recorded  upon  the  record 
book  of  the  abovesaid  parish,  the  two  within  aflidavits, 
one  of  Mr.  Nicholas  Guelirk,  Priest,  the  other  of  Mrs. 
Emma  RouwcJL  This  being  a  true  copy  as  now  givea 
under  my  hand  the  day  and  date  above,  by  me, 

"Jf'rn.   Ilavftt,  C'lk.  Ve-try." 

"Entered  on  the  records  of  Charles  county,  June  the 
25th,  170.V  [See  3  Iltir,:  *V  M-Hen.  239.] 

The  petitioner  further  gave  evidence,  that  the  paper  in 
the  record  mentioned  to  be  recorded,  was  not  to  be  found 
among  the  papers  remaining  in  the  clerk's  office  of  the 
county;  and  that  the  parish  registers  of  Kin^  and  ((Hern 
parish,  in  Saint -Afar  if  s  county,  prior  to  the  year  1744, 
have  been  lost  or  destroyed.  The  defendant  objected  to 
the  admissibility  of  the  entry  on  the  record,  a*  evidence; 
and  the  county  court  sustained  the  objection.  The  peti- 
tioner exceptcd*  There  was  a  verdict  and  judgment  for 
the  defendant^  and  the  petitioner  appealed  to  this  court. 

The  cau<*e  was  argued  before  CHASE,  Ch.  J.  BUCHANAN. 
and  NICHOLSON,  J.  by 

T.  Buchanan,  for  the  Appellant;  and  by 
Cluipmun,  for  the  Appellee. 

THE  COURT  dissented  from  the  opinions  expressed  bj 
the  court  below,  in  all  of  the  bills  of  cxcej)liony. 

JUDGMF.NT  REVERSED,  AND  flUiM-  HK.NDO  AWARDED,  (d.) 

fa)   In  tlif    r:«<*  of   Itiiirt    Qttrrn,    and   C'liihJ,   r.i.    JJrplntrn,    7 
,  290,  '  irt  of  tin-  f'nllfil  .Vu/rs  decided,  tliut 

c\  i'lcii'-r    is  incompetent    to   cstal>li>li    am     Mprfilic    t..ct, 
is  in  its    natnri*    s-isei-pTihlv-    of  hrin^    proved  hy    witin 
vho  sp«-:ik  from  tliuir  own   knowlcdp-;  :iivl  ilmt  fl;tims  to  frci-doip 
in  Marjlaiui  .ire  not  exempt  from  tlut  ^c 


OF  MARYLAND.  803 

SIIKKLY  vs.  BIGGS.  1808 

DECEMBER, 
APPEAL  from  Frederick  County  Court.     It  was  an  action      e—^^^ 

of  Slander,  and  the  declaration  stated,  that  the  plaintiff,  ah>est'lr 
(now  the  appellee,)  was  a  good,  true,  honest,  and  iaithiul  In  JB^tion  of 
citizen,  and  had  always  lived  tree  and  wholly  unsuspected  *^^j1^  *^e 
of  and  from  all  manner  of  peijury,  &c.  yet  the  defendant,  uUT'-i.'c^uie^lTii 
(the  appellant,)  maliciously  intending  so  injure  the  plain-  ;L™/7/c«^u"- 
lift'  in  his  good  name,  and  to  bring  him  into  public  scandal,  'i''K''u^ui."',"idj^ 

•  11-  i    ^  i-i  liwl        committed 

ignominy  and  disgrace,  and  to  subject  nun  to  the  pains  and  ptijur);  u,at  uie 
penalties,  by  the  laws  ami  statutes  ot  this  state,  made  and  lu^oathbew"  a 
provided  against  those  \\lio  are  guilty  of  lalse  swearing,  «oi  to  i>e  acuuu- 

°  *  °      Uljlc. 

on,  &.c.  spoke  and  published  of  and  concerning  the  plain-    Noword»«i««». 

uonaUe        uiileu 

tiff  these  false,  scandalous,  and  malicious  words,  viz.   "He  lht>    imi>uit  .  » 

eiuuetoioe  plain- 

(meaning  the  plaintiff.)  swore  false,   and   swore  to  a  lie,"  J'1'  '  wim-i*  »ui«ect» 

'/  him     tu      |iuui»li- 

(tneaning  that  the  plaintiff  had  committed  perjury,  that  he  "'^.£t  .offlce  of  Ihe 
had  taken  a  false  oath  before  a  magistrate.)  Ihe  *ewnd  ™*™ntio  g^fi* 
count  charged  the  defendant  with  uttering  these  words,  to  ."'"'.auJr'suiHci'cnt 
ptner  citizens,  of  the  plaintiff:  "He  (meaning  the  plaintiff,)  j"  l"«HmU"2* 
had  swore  false,  and  would,  if  he  did  not  take  care,  lose  '^l™'  ^  l',"'^ 
his  ears  fur  it,"  (meaning  that  the  plaintiff  committed  per-  i^n"b,ol,e  thSr 
jury  before  a  magistrate.)  The  general  issue  was  pleaded,  ^"'"xlfiKt'a'Ty 
and  the  plaintiff  obtained  a  general  verdict  for  £22  17  6«"akeUit«a«aott« 
.current  money.  The  defendant  moved  in  arrest  of  judg-  mtu-  worth  may 

be  UliuCL'atuud  1U  H 

ment,  and  assigned  the  following  reasons:  1.  Because  the  •«"*»«><  «=«""n»i, 

0  .  ilicie    n.u.i   be    a 

words  charged   in  the  first  count  ot  the  declaration  are  <-»<''<««'.'i««»  »u  the 

JnliuUuttoi-y  pui-l, 

not   actionable.     2.  Because   the  words    charged    in   the  lu  "<nv  ""-y  »ci-e 

»tx>keu  in  u  cniui* 

second  count  are    not  actionable.     3.   Because  the  words  l"">cl>si'ol.lh<;y 

ai-c    LIU( 

chai-ged  in  the  different  counts  of  the  declaration,   and  al-  Ut;.u 


leged  to  have  been  spoken  by  the  defendant,  are  not  so  laid  *"' 


niake 

1.t.1.  /^iTu? 

and  set  forth  in  the  said  counts,  as  to  entitle  the  plaintiff  to  "w^um.JuiuJ 
maintain  his  action.      4.  Because  there  is  no  colloquium  ^££££9?** 
set  forth  in  the  declaration,  showing  the  words  were  spoken  wLTswuuh  l'*n/ 
in  reference  to  a  judicial  proceeding,  or  to  what  the  words 
spoken  referred.     The  county  court  overruled  the  motion, 
and   rendered  judgment  on   the  verdict  for   the  plaintiuj 
From  that  judgment  this  appeal  was  brougnt. 

The  cause  was  argued  before  CHASE,  Ch«  J. 
NictioLSo.v,  and  GAVJT,  J. 


Taney  and  F.  S.  Knj^  for  the  Appellant,  cited  Holt 
vs.  SchcMidd,  6  T.  R.  691. 

Shaft/",  contra,  cited  6  Bac.  Mr.  tit.  Slander,  (B.  3.) 
and  Gruncth  vs.  Dern^  3  Xey.  1GG. 


S61  CASKS  IN  THV.(  WKTMV   \ITlAlr~ 


1808.  Cuvsi',  C'li  J.  dtlixcnd  tin-  opinion  of  the  couit.   There 

are  some  principle-  well    established  in  ;u  -lions  of  slander, 
which  govern  the  court  in  determining  this  « 

first.  No  words  air  actionable  unites  they  impute  a 
crime  to  the  plaintiff,  which  rabjecto  him  to  punishrocm. 
5  B/L  Com.  \-2Z.  I  It  It  r,v.  S.-liuhJ-ild.  G  '/'.  li.  (i'.il.  t.'.M. 

Secondly.  The  office  of  the  innuendo  is  to  «  \|  l;.:n 
doubtful  woids,  where  there  is  matter  sutl';citn(  in  the  de- 
claration to  maintain  the  action;  and  if  ti.e  words  in  (l.<  n.- 
selves  are  not  actionable,  their  meaning  cannot  be  txti  nd- 
ed  by  it  to  make  them  actionable.  Holt  vs.  Scht-!<j 
T.  it.  G!?4. 

Tlnruhj.  If  the  words  mny  be  understood  in  a  sen?e  rot 
criminal,  there  must  be  a  colloquium  in  the  inttudmtniy 
part,  to  show  they  were  spoken  in  a  criminal  sense,  or  they 
are  not  actionable. 

The  void  fir.-sji-oni,  although  in  one  cense  it  may  im- 
port piTJun,  \ct  it  dncs  not  nut^Mirilij  hi:j,l  ij  it  ;  li.ra  per- 
son may  be  forsworn  without  committing  perjury;  and  no 
extrinsic  aid  can  be  derived  from  the  innuendo  to  -ivc  the 
words  a  criminal  meaning. 

It  the  words  before  the  innuendo  do  not  import  slander, 
no  words  produced  by  the  innuendo  will  irake  the  action 
maintainable.  It  is  not  the  nature  of  aninniititdo  to  be^ct 
an  action.  Forsworn,  by  itself,  does  notimpoit  »!. 
otherwise  of  the  word  jurjvrid.  Comets.  Morton,  Ytlv, 
27.  Holt  r*.  ScholrficM,  G  T.  If,  G94. 

To  make  the  word  forsworn  slander,  it  must  be  intro- 
duced by  a  colloquium,  setting  forth  seme  juiiiri.-.l  pio- 
ceeding  in  which  he  was  sworn.  Core  j  .v.  Murtn.. 

The  \\onU  in  the  tleclaratimi  thai^etl  to  have  I  t  u.  Bpci* 
ken  are,  that  "he,  the  sniil  Jm-iJ/,  U.-IH-(  Jti/-<,  ;u.<> 
to  a  /tc."  The  subM'«|uent  word-,  "meaning  tliat  the  saitl 
Jacob  had  comniincd  |.cijuiy.  that  the  said  Jurvl  had  taken 
u  f.ii.-c  oath  before  a  magistrute,*'  are  part  of,  and  come  un- 
der the  hinveiulo. 

The  question  is,  whether  these  \\ordsare  actionable?  and 
dmitte-1,  if  they  are  nut,  the  judgment  mu-t 
I,  there  being  one   defi'c;ti\r  ioi:nt  in  the  declaration 
—a  general  verdict  and  entire  damage*  having  been  -ncn. 

The  court  arc  of  opinion  they  are  not;  and  that  the  judg- 
ment of  the  county  court  be  reversed,  and  judgment  on 
the  verdict  be  arrested. 

JtUOMKNT   HF.Vr.il  SF.D,   &.C. 


OF  MARYLAND.  369 

V>':. r\is   vs.  Si  \I.UM;H.  1808 

IH.CKMliRn, 

APPEAL  from  f«/zTr£  County  Court.     This  wag  an  action      * — <r- — • 
of  trover,  brought  by   the  appellant  against   the    appellee, 

S  l :  i  u  1 1  Jipi 

for  one  hogshead  of  crop  tobacco,  weithmc  GHBlbs.  £c.  to 

Innn  prtiinirffro* 

which   the  general  issue   vt  as  pleaded.     At  the  trial,  the  '•<•'••  bniuRiiTi>y  :.u 

Ptliplojtr    :if,Hiint 

plaintiff  Qft'ered  in  evidence,  that  in  the  year  1802,  the  de-hisov".P!"tr«l<"'t; 

J  ti.u-i-  Uie  \a  w  uf 

femlant  carried  to  the  inspection  house  at  J.cice r  Marl-  "J','1,'1,1 ',,,','',','  '"i',™ 
borough  six  hogsheads  of  tobacco,  which  grew  on  the  farm  J;^ l';(';|  ^.f^.'"^ 
of  the  plaintiff  during  the  year  1802,  while  the  defendant  "a'^Vivuufthe 
acted  as  the  overseer  of  the  plum  tin";  three,  of  which  I.OJE.S-  !hrt»"i«tr,iota 
heads  Were  crop  tobacco,  one  weighing,  &c.  three  secr.t.d,  i,;  h>»\iiipio)*r. 
one  weighing,  &c.  'I  l:at  the  tobacco  was  inspected  in  the  tan.. It  ;'i.«i  »'«^i  i£ 
name  of  the  plaintiff,  and  the  rotes  delivered  to  the  dc- *ji»re  "'  UK  «-op 
fendant,  tube  delivered  by  him  to  the  plaintiff,  but  that  thcs"  ;.J;HM.,.  m  ci.- 

trniliiuiibttnita 

defendant  delivered  only  five,  and  retained  the  one  of 'the  ""•  i:""->' il'i'- 

J  Innnj,'      lhat     t!u- 

crop  hogsheads  weighing  988,  and  which  he  afterwards  j',!,',.^111'  ni  ."'."J",^ 
sold,  'i  he  defendant  then  produced  and  read  in  evidence,  JJi"^'^'/,"/'"'"!!,^ 
an  agreement  in  \\iiting  entered  into  between  him  and  the tutititii'io'ixco'v^r 
plaintiff,  the  execution  of  which  was  admitted,  dated  the 
9th  of  September  1801,  in  which,  among  other  things,  it 
was  agreed  that  the  defendant  was  to  serve  the  plaintill  as 
an  overseer  for  the  em-uing  year,  1802,  and  to  receive 
therefor  the  sixth  part  of  all  tobacco,  &c.  made  by  him  ou 
the  plaintiff's  plantation,  with  the  Lands,  ice.  stated  to  be 
found  and  furnished  by  the  plaintiff.  The  defendant  proved 
that  the  six  hogsheads  of  tobacco,  above  mentioned,  were 
made  on  the  plantation  of  the  plaintiff,  while  the  defen 
dant  acted  as  overseer  under  the  above  articles  of  agree- 
ment. He  then  prayed  the  opinion  of  the  court,  and  their 
direction  to  the  jury,  that  if  they  should  be  ot  opinion, 
that  the  hogshead  of  tobacco  sold  by  the  defendant  was 
part  of  the  crop  made  on  the  plantation  of  the  plaintiff' 
during  the  year  that  the  defendant  ucted  as  overseer  nn<- 
dcr  the  above  agreement,  that  the  plaintiff  is  not  entitled 
to  recover  in  the  present  form  of  action.  And  the  couit, 
(Cantt,  Ch.  J.)  upon  this  prayer,  instructed  the  jury,  that 
if  they  should  believe,  from  the  evidence,  that  the  tobacco 
was  made  upon  the  plantation  of  the  plaintiff,  during  the 
year  mentioned  in  the  agreement,  when  the  defendant  was 
overseer,  and  that  there  had  been  no  division  of  the  tobacco 
so  made,  that  the  defendant  had  an  undivided  property  iu 
the  tobacco  so  inspected  by  virtue  of  Ihe  agreement, 


$65  *    ^SES  IN  THE  COURT  OF  A1TF.A  i 

that  the  plainlifl'  could  not  recover  in  this  action.  Tlie 
plaintiff  exccptedj  and  the  verdict  and  judgment  being 
again.-. t  him,  he  brought  this  appeal. 

The  cause  A  as  argued  before  CHASE,  Ch.  J.  EVCHANAN, 
and  NICHOLSON,  J.  by 

Johnson,  (AHorney -General,)  and  Magrudcr,   for    the 
Appellant;  and  by 

U.  J.  Clagtll,  for  the  Appellee. 


THE  COURT  was  of  opinion  that  the  defendant  below 
only  a  hired  person;  that  that  character  was  not  changed 
by  his  compensation  being  uncertain  and  depending  on  the 
amount  of  the  profit*;  that  he  had  no  such  interest  in  the 
crop  as  would  justify  him  in  disposing  of  it,  and  that 
having  sold  the  tobacco  in  question,  he  \\as  liable  to  the 
plaintiff  below  in  this  form  of  action. 

JCDGMKNT   KEVEP.SiEU,   AND   I'HOCEDEKDO  AWARDED. 


G.  &  J.  CHAPMAN  vs.  BRAWXER, 

Vr"/-'"ii0«f      APPEAL  from  Charles  county  court.     An  action  of  irts- 
,,'„'' pans  quart  dausumfregiti  was  brought  by  the  appellants  a- 
tiust  the  appellee,  for  entering  their  clo»e  called  (ir. 

.  £c.      The  pleas  of  not.  cm.  and  freehuld  in  the  de- 

'.":"*.  fendant,  as  par  .  were  pli-hded. 

:  v.a-  joinwl  to  t!ie   first    plea,  and    a  guu-ial  replica- 

',i"  tion  put  in  to  the  second.      The  Uflendant  ttnnurrtil  to  the 

:»,••  iratt  replication,  to  \\liu-!i  there  was  a  joinder  in  demurrer.  '1  he 

called  C  U,at  the 

•  ••d  county  court  overruled  the  demurrer,  and  directed  the  de, 

,     1,11     Hie  * 

,  ndant  to  answer  over  to  the   replication.     A  general  re- 

aded,  and    issue    joined.     The    lands  were 
<i  on  phi:-  retujned  under  a  warrant  ».-f  irr,r.i\, 
:;-d  for  thai   purpose.      At  ihe   trial  the  pLintiiu  gave  in 

.igo  the  fence,  located  on  the 

.'>'.';;!l,'n  ;•  -i't  lll'  ^  ietoi  of  the  land,  located  on 

^  i       -•    III<1   tailed   T:  'JT*,  and    liu.t  the  fence 

been  uniformly  kept  up.  They  further  gave  e\,u'i 
that  between  50  and  MMiv.is  ago  their  father,  J}t 
Ch"  -.-I  possession  of  the  trad  of  Ian. 1  located  on  the 

plwth  called  (iryme'y  Ditch,  ai^l  also  of  ail  that  part  of  the 
tract  called  The  Adventure,  which  lies  on  th.  .••  of 

the  fence;  that  1\  (,'!iuj<munt  in  his>  lile  time,  cultivated  auU 


OF  MARYLAND. 

cat  Wood  on  the  land  on  the  west  side  of  the  fence,  and  1803 
had  full  and  uninterrupted  possession  of  the  same,  claim- 
ing  it  as  his  land;  that  on  the  death  of  P.  Chapman*  the 
land  descended  to  the  plaintiffs,  who  have  since  cultivated 
and  cut  wood  on  the  same,  and  held  possession  thereof 
Until  the  trespass  mentioned  in  the  declaration  was  com- 
mitted; and  that  all  that  part  of  Thf.  Adventure^  which 
lies  on  the  west  side  of  the  fence,  has  been  called  and  re- 
puted as  part  of  Grime's  Dltch^  and  has  been  held  and 
occupied  by  the  plaintiffs,  and  their  father,  as  part  of  that 
land.  The  plaintiffs  then  offered  to  prove,  that  the  defen- 
dant had  committed  the  trespass,  alleged  in  the  declara- 
tion, to  the  eastward  of  the  black  line  as  located  on  the 
plots  from  letter  B  to  letter  C,  the  second  line  of  Gnjme'-s 
Dilcii*  as  located  on  the  plots  by  the  plaintiff,  and  on  the 
west  side  of  the  fence.  But  the  defendant  objected  to  the 
admissibility  of  the  evidence,  and  contended  that  the 
plaintiffs  were  not  competent  to  give  evidence  of  any  tres- 
pass committed  on  that  land;  and  the  county  court. 
(Gantt,  Ch.  J.)  was  of  opinion,  and  so  directed  the  jury, 
that  the  plaintiffs  were  only  entitled  to  recover  for  a  tres- 
pass committed  by  the  defendant  within  the  lines  of  the 
tract  called  Gsyme's  Ditch,  as  the  same  is  located  on  the 
plots  by  the  plaintiffs.  The  plaintiffs  excepted;  and  the 
verdict,  and  judgment  being  against  them,  this  appeal  was 
brought. 

The  cause  was  argued  before  CHASE,  Ch.  J.   BUCHA- 
NAN, and  NICHOLSON,  J.  by 

T.  Buchanan,  for  the  Appellant;  and  by 
C.  Dorsey,  for  the  Appellee. 

JUDGMENT   AFFIRMED. 


SMITH  &  BUCHANAN  vs.  GORTON*. 

APPEAL  from   Baltimore.  County  Court,     rftsumprit  by  ,Ju ' 
the  appellee  against  the  appellants.     The  declaration  con-  'oT 
tained  two  counts.     The  general  issue    was  pleaded;  and  !!riiTi$ of" 
at  the  trial  the  plaintiff  offered   certain  testimony  in   evi-  ?SV' '},„£ 
dence,     The  defendants  objected  to  the  testimony    being  Tr™™!*,,/™. 
given  to  the  jury  in  support  of  the  is^ue  joined  on  the  se-  rfalj/   *  *"'c> 
cond   <count  ju  the  declaration;  but  the  county  court, 


363  CA<K<  IV  THi  1   OF  AI'I'F.  VLS 

I  (ft-  J.)   overruled   th-  ohj.'c.tnn,   and  per- 

mitted the  evident  en   to    ti, 

da  MI-*  excepted;   and  the    verdict   and  judgment   being   for 
the  pluintitV,  they  appealed  to  thi>  coiuf. 

The  can*.-  «.vas  ar^upd  before  CJIVSL,  Ch.  J.  BCCHAXAV, 
-.-OLSON-,  and  (i \\  i  i,  .!.  by 

llnrjn-r\\.'\  1  Pt'-rinnrc,  for  the  Appellants^  and  by 
11 inJer  and  Roffcrs,  for  the  Appcli- 

TIP:  r. -,;-'<-i  wi-i-e  of  opinion  tlut  there  was  error  in  the 
form  of  proceedings,  the  second  count  in  the  declarntiou 
tvi'i^  d»'fecM\v:  but  they  concurred  in  the  opinion  express- 
ed by  the  court  below  in  the  bill  of  exceptions. 

JUDGMENT  HEVEKSKl),   AND   I'KOCEUENUO  AWARDED. 


n  Minn  vs.    J!r,  I:\KS 

AriT.vi.    from    Chtirttn  County   Court.       An   action   oi 
•>i^il  %v;i>  bi-oii!;ltt  by  «ii-  ap;'(-i!ant  a-iinst  the 


•0,  and  tlr.r  declaratitin   contained   counts,  for  innnn/   Jin-l 

n'i  VcViIm  «"••'  ffi-fli'i'  V,  for  the  pricr.  of  a  gdilin-f  v//7,  a  fjn'tnfun 

'•      '/  for  a    o;eldinj;  s'dd,    for    money  paid,  laid  ovl   and 

iT!|'  ,.'1  .•f>niJi  ,'.  and  for  inonrj/  lent  and  uthwnwl.     T'ne  general 

ssue  'AH-  pleaded.     At  tlie  trial   the  plaintiff  gave  in  evi- 

•'iit  sorin-time    before  the   briny;in};   the  action,   he 

:    MM.,  mi.)  ;  \vith    ill*'  defendant  to  sell  II'UM  a  hoi>r  far  the  sum 

,  ,i  .iiii  nut    • 

•I   S^JO,  and  that  the  deiemlaot  agreed  to  pav  that  .^nm  loi 

•  IKlill.-,       DC      fit* 

the  hot  sc;  that  the  horse  was  to  be  delivered  on  the  pay- 
ment of  the  price  agreed  upon.  That  on  the  day  after 
the  ii^i-cetnc-nt,  the  deft-ndarit  sent  to  the  plaintiH'  the  pa- 
per jiiddured,  purporting  to  be  a  bank  note  of  the  Batik  of 
Jia'timore  for  £100.  That  the  prr-.m  by  whom  the  note 
was  sent  delivered  it  to  the  plaintiff,  who,  before  receiving 
it,  a*ked  the  opinion  of  o-ie  M-I'hrrwn  whether  the  note 
nine  or  not,  who  \va»  of  opinion  that  the  note  was 
,'ii'ic.  That  the  plainlifi'  deliv.ired  the  horse,  accor- 
(li;  .[.-fendant's  re«|'ie-,t,  to  the  ptr«on  by  whom 

tlie  defendant  had  sent  the  note,  and  the  plaintilF  also,   at 
the  same  tii;.  lin'Z  '"  tbe  dffeinlam'«.  n-.ini^f,   jwid 

to  ,,..f.n   the  dcfiMidant,    8^".  bein^  the  dif- 

fi-rviicc    betwoeil    the   sum  -perilled    in    (lie   note,    and   the 
y.     C  of  the  horse.      Tliut  the  defendant  received  the  g40. 


OF  MARYLAND.  369 

The  plaintiff  then  gave  in  evidence,  that  the  note  was        1809. 
forged.     There   was   no  evidence    that   the  defendant  or       * — ^~J 

I    •       •«.  i  ,.  Keyi  fc  Heron 

plaintiff  knew  or  suspected   that  the  note  was  forced,  nor  »•» 

Ooldtbufooch 

was  there  any  evidence  that  the  defendant  had  endorsed 
the  note,  or  had  expressly  warranted  it  to  be  genuine;  but 
both  plaintiff  and  defendant  considered  it  genuine  at  the 
time.  The  defendant  then  prayed  the  court  for  their  in- 
struction to  the  jury,  and  the  court,  (Key  and  Clarke, 
A.  3.)  according  to  the  defendant's  prayer,  were  of  opi- 
nion, and  did  instruct  the  jury,  that  if  the}'  should  be  of, 
opinion,  from  the  evidence,  that  the  defendant,  at  the  time 
he  sent  the  note  to  the  plaintiff,  did  not  know  that  it  was 
a  forged  note,  or  had  not  endorsed  it  to  the  plaintiff,  or 
expressly  warranted  it  to  be  a  good  note,  that  the  plaintiff, 
was  not  entitled  to  recover;  and  that  the  law,  from  the 
evidence  offered,  did  not  imply  a  warranty  or  contract  on 
the  part  of  the  defendant  to  pay  the  sum  specified  in  the 
note,  to  the  plaintiff,  although  the  note  was  forged,  unless 
he  knew  that  the  note  was  forged  when  he  delivered  it  tu 
the  plaintiff,  or  had  endorsed  the  note,  or  expressly  war- 
ranted it  to  be  a  genuine  one.  The  plaintiff'  excepted;  and 
the  verdict  and  judgment  being  for  the  defendant,  the 
plaintiff  brought  this  appeal. 

The  cause  was  argued  before  CHASE,  Ch.  ].  BUCHANAN, 
and  NICHOLSON,  3.  by 

T.  Huchnnan,  and  Chapman,  for  the  Appellant;  and  by 
C.  Dorsey,  and  Baker,  for  the  Appellee. 

JUDGMENT  REVERSED,  AND   I'ttOCEDENDO  AWARDED. 


KEYS  &  HERON  vs.  GOLDSBOROUGH'S  Lessee.          JUNE  (E.  S.) 

APPEAL  from  Dorchester  County  Court  This  was  an  .levi^lc^T'li' 
action  of  ejectment  brought  by  the  present  appellee,  (the  £tate,ato  Uhl  ™?i 
plaintiff  in  the  court  below,)  to  recover  possession  of  a  p3!,,!!^"  of  hi" 
tract  of  land  called  EnnaHs^s  Inheritance.  The  defen-  ofa'Vaie^uLd'^ut 

ancii'Mi    l>v    them 
to  Wf».  of  a  part  ofilie  mil  nUMe.  fn^tber  wiih    »    nxMnornmliim    ofthf   sa'c.    MilHcriln-il    by    the 

uiii'tiuiiei-r,  ami  a  r«-ei-i|>t  i;iv«Mi  li>   i|icu>  fur  the  ptirrtiMie  iiiune y— HcM  tn  ho    aiimisjibie    evidence  to 

>liciw  »  nti.-  »t  IHW  in  W  (i.  wiihnut  :i  ili-eil  ut  Iwi  y  mi  anil  sale,  or  other  vonvrjauuc.   to  him  from  the 

'vu^tc' K,  aiul  lo  lie  <«iH'n'i< -nt  to  enable  his  a -\>vf  ui  iei:iiver  fiich  real  eitni.e  in  :in  aetiiin  ot>j-ctrao..t. 

H  II.   hy  liis  will,  ill  v.v  I  ns-f..i'  'W<:  "I  jrive  am)  ht-qii>-r.li  'into  my   il.-sirly  lx-l«\cfl    son,  'C  II,  thft 


YOL     H 


870  CASES  IN  THE  COtJRT  OF    APPEAL* 

1809.  dant-,  (now  appellants,)  appeared  ami  took  general  defence. 
1.  At  the  trial  the  plaintitV  proved  that  Jrcliitxiltl  Patti- 
sort,  on  the  9th  of  August  17'.M.  l>»'mg  -.-i/c«l  of  the  lan.l 
for  which  the  atti'm  was  bi  ought,  and  of  other  lands,  duly 
made  hi-  will,  in  which  he  stated,  that  he  meant  and  in- 
tended to  dispose  of  all  his  estate,  real  and  personal,  and 
to  charge  all  his  real  estate  with  the  payment  of  his  just 
debts,  lie  then  devised  to  hit  friends,  Chnrlrs  Ciook- 
shanks  and  Archibald  Moncreiff",  and  the  survivor  of  them, 
all  his  real  and  personal  estate,  to  be  sold  and  disposed  of 
by  them,  in  as  full  and  ample  manner  as  he  himself  could 
dispose  of  them,  for  the  payment  of  his  debts,  leaving  the 
manner  of  such  disposition  entirely  to  their  own  judgment 
and  discretion;  but  it  was  his  request  und  direction  to  them, 
that  his  lands  on  Trumtqiiakin  river,  bought  of  captain  Eu~ 
na//.v,  ami  those  bought  of  Slm'tirl,  should  if  possible  be  re- 
served, together  with  those  taken  up  by  him,  which  adjoined 
those  purchased  of  S/et/xirf,  but  more  particularly  the  dwel- 
ling plantation  where  col.  Hnrthnloinew  Lnnall*  resided, 
vlmh  he  directed  should  be  last  sold  of  any  of  his  real  es:. 
and  if  possible  reserved  for  his  daughter.  And,  after  th<? 
payment  of  his  debts,  he  gave  and  bequeathed  to  his  dear 
daughter,  Mary  Pattison,  and  the  heirs  of  her  body,  all 
his  estate  real  and  personal,  &c.  He  appointed  Crook- 
ihanka  and  Hionrreijff,  executors  of  his  will,  and  trustees 
for  the  sale  of  his  real  and  personal  estate,  and  directed 
that  the  said  powers  should  be  fully  delegated  to  the  - 
vivor  in  case  of  the  death  of  either,  and  that  such  survivor 
might  delegate  the  same  to  his  executor,  if  not  before  fully 
executed.  The  plaintiff'  also  proved*  that  Patllson  died, 
seized  of  the  land  in  dispute,  and  that  after  his  death, 
DniAfctAonfo  and  ^fonc^f(^/\  on  the  3d  of  December  171)1. 
caused  the  will  to  be  duly  proved,  and  on  the  same  day 
renounced  their  right  to  the  executonthip.  The  plaintiff 
also  proved  that  Crookshunk*  and  Monrrrtf  took  upon 
themselves  the  execution  of  the  trusts  mentioned  in  the 
vt ill,  and  of  the  powers  and  authority  therein  contained 
and  limited,  and  that  afterwards,  on  the  15th  of  October 
1792,  they  exposed  the  tract  of  land  called  /;,ma//*'»  //i- 
heritancci  and  also  oilier  lands,  to  <ali*  at  public  auction, 
for  the  purpose  of  Tigr  the  debts  of  Puttison,  ami 

in  pursuance  of  the  trusts,  and  that  the  lessor  of  the  plyio- 
tiff  became  the  highest  bidder  and  purchaser  thereof,   »tf* 


OF  MARYLAND. 

the  lands  were  sold  and  struck  off  to  him  by  the  trustees.        1809 
The  plaintiff  also  gave  in  evidence  the  auctioneer's  bill  or      S-^-v-^1 
memorandum  of  the.  sale,  subscribed  by  him,   which   sub-  »» 

GoMshorough 

scnption,  he  being  dead,  was  duly  proved;  and  also  the  ex- 
emplification of  a  judgment  recovered  by  faoncreiff,  as 
the  surviving  trustee,  against  the  lessor  of  the  plaintiff,  for 
the  purchase  money  arising  from  the  said  sale:  and  also  a 
receipt  given  by  Afoncteiff  to  the  lessor  of  the  plaintiff, 
for  the  payment   of  the  money   so  recovered,   under  the 
hand  and  seal  of  Moncrcifl',  duly  proved,  which  payment 
was  made  before   the  commencement  of  this  ejectment. 
The  defendants  objected  to  this  evidence,  and  contended 
that  it  was  inadmissible  and  incompetent  to  show  a  title 
at  law  in  the  lessor  of  the  plaintiff  to  the  land  claimed  in 
this  ejectment;  and  moved   the,  court  to  direct  the  jury, 
that  unless  the  plaintiff  should  produce  and   show  a  deed 
of  bargain  and  sale,  or  other  conveyance,  duly  executed* 
acknowledged  and  enrolled,  according  to  law,  in  the  usual 
forms  of  law,  to  the  lessor  of  the  plaintiff,   for  the  land  so 
sold,  the  plaintiff  was   not  entitled  to  recover.     But  the 
court,  [P0M-,  Ch.  J.  and  Robins,  A.  J/J   were  of  opinion, 
and  determined  that  the  evidence  was  admissible  and  com- 
petent to  show  a  title  at  law  in  the  lessor  of  the  plaintiff, 
without  a  deed  of  bargain  and  sale,   or  other  conveyance, 
and  directed  the  jury,  that   if  they  believed  the  evidence, 
the  same  was  sufficient  to  enable  the  plaintiff  to  recover. 
The  defendants  excepted. 

2.  The  plaintiff  then  proved  that  Robert  Heron,  on  the 
29th  of  June  1788,  being  seized  of  the  tract  of  land  called 
Ennullffs  Inheritance,  mentioned  in  the  declaration,  duly 
made  his  will,  and  thereby,  as  to  such  worldly  estate  as  it 
had  pleased  God  to  bless  him  with,  he  devised  as  follows: 
"It  is  my  will,  and  I  do  order,  that  in  the  first  place  all 
my  just  debts  and  funeral  expenses  be  paid  and  satisfied, 
//em,  I  give,  and  bequeath  unto  Elizabeth,  my  dearly  be- 
loved wife,  during  her  widowhood,  the  use  of  all  my  estate 
real  and  personal,"  &c.  "When  it  shall  please  God  to 
take  to  himself  my  dear  and  loving  wife,  then  my  will  and 
desire  is,  that  my  estate,  both  real  and  personal,  be  given 
and  bequeathed  in  manner  following:  Item,  \  give  and  be- 
queath unto  my  dearly  beloved  son  (Julhbcrt  Heron,  the 
free  u&e  of  my  land  whereon  I  now  live,  called  Ennalls^s 
Inheritance,  b«ing  by  estimation  abuut  300  Acres,  with  a4i 


373  I N"  THE  COURT  OF  APl'E  A I  ..- 

isoo  houses    tod  hn|MrvtViMt8  (hctcenv  dvHng  Ait  fMftiftl 

^— v— '       life,  to  occupy  am!  enjoy  tin-  saint-:  arid  alter  tlie   decease 
^        '    <if  niv  said  son  Culhl'frt  Heron,   ]  ^ive   and   bequeath    tli»- 

GoMsburowgh 

aforesaid  lands  called  £nnoUifi  Inheritance^  with  all  the 
houses  and  improvements  thereon,  unto  llic  Itnr.t  of  my 
said  son  Culhhcrt  H(ron,  Innfi'lh/  nf  his  bixlif, 

for  frfr;  and  for  want  of  such  heirs,  I  {jive  and  bequeath 
the  aforesaid  lands  called  I'nnalts'x  Iiihrritvnrp,  with  t!ie 
improvements  thereon,  unto  my  dearly  beloved  son  llobrrt 
Heron,  and  the  heirs  of  his  body  lawfully  begotten,  for 
ever;  and  for  want  of  such  issue,  to  my  dearly  beloved  son 
Charles  Ilcrnn.  and  the  heirs  of  his  bodv  l.iwfullv  begotten. 

»  «.  O 

for  ever,  and  for  want  of  such  issue,  to  my  four  daughter-. 
to  be  equally  divided  amoii^-t  t:r--n,  and  the  heirs  of  their 
bodies  lawfully  begotten,  for   ever.     7,Vn?,  I  yive   ;;nd   be- 
cjiic^h  to  my  belo>ed    ?nn  Ko1>frt  Htron,    a   tract   of  land 
called  Heron  s  Fin>t  Jlddilion.    Ct»r   arres,  unto  him    the 
said   Rnbcrl  7/cro/j,  and  the  heirs  of  his  body  lawfully  !)«•- 
gotten,  for  ever/'     There  was  a  fhnilar  devi-e  of  L'rron's 
Second  Mtlihon  to  his  son  Charles.     The  plaintiH'  further 
proved,  that  bcini;  so  s«i/.ed,  the  said  last    paired    testator 
afterwards  died,  leaving  the  lands  and  tenements  in  his  \\ill 
mentioned,  and  the  several  children  therein  also  mention- 
ed.    That  Elizabeth  Heron,   the  widow    of  the   testator, 
sunived    him,    and   entered    into    the  premises  devised  to 
lier,  and  held  the  same  during  her  widowhood,  which  ended 
with  her  life  in  (he  month  of  December  1803,  when  she 
died.     That  C-flh(jrrt  Heron,  the  devisee  in  the  wil!  men- 
tioned, also  survived  the  testator,  and  oti  the  2Ist   of  May 
1784,  being  of  lawful  aj;o,  by  deed   of  indenture  dulv  ex- 
ecuted, acknowledged  and  recorded,  he  granted,  bargained 
and  sold,  Ennalls's  Inherilnnrr.  with  other  land,   wi;h  (he 
appurtenances,  to  Jirchibtthl  I'ntfi.wn,  and  his  heirs,  in  /',-.» 
simple.  11  ruler  whom  the  lessor  of  thr  plain  tiff  claims.  That 
Cuthbcrt  Itcnm   afterwards,    in  ihe  year  171-0.  died,  leav- 
ing lawful   if  ''ihcrl  Heron,   one  of  th««   tlefeudanfs, 
}.is  eldest  son  and  heir  at  law.     The    defendants  objected 
to  the  title  claimed  by  the   plaintiff,   and  contended    that 
Cnthbert  Heron,   under  the  will   of  Robert  Heron.    ti-i-U 
only  an  estate  for  life  in  the  lands  devised  to  him,  and 
had  no   lawful    power  to  make  a   conveyance   of  fir- 
lands  tx>yond  his  natural    life.      ]',•!»    »'ne   court,   [Itoljins, 
A.  J.]  was  oF-opinion,  and  decided,  that  Culhicrl  Heron. 


OF  MARYLAND. 


S73 


took  an  estate  intail  general  in  the  laruh  devised  to  liim  18C9 
by  Robert  Heron,  and  therefore  had  lawful  power,  accor- 
ding to  the  laws  of  this  state,  to  make  the  conveyance  of 
ihe  21st  May  1784,  and  directed  the  jury  accordingly. 
The  defendants  excepted.  Verdict  and  judgment  for  the 
plaintiff,  and  the  defendants  appealed  to  this  court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  BI'CIIAXAN-, 
and  NiciroLsoN,  J.  by 

Hammond,  Campbell,  Carmichael,  and  Kerrt  for  the 
Appellants:  and  by 

Martin,  llullilt,  J.  Bayly,  and  IV.  7?.  Martin,  for  the 
Appellee. 

THE  COURT  concurred  with  the  court  below  in  the 
opinion  given  as  stated  in  the  firxt  bill  of  exceptions:  but 
as  to  that  expressed  in  the  second  they  gave  no  opinion, 
in  consequence  of  the  parties  wishing  to  effect  a  compro- 
mise. 

JUDGMENT 


iEKE's  Adm'r.  I).  B.  N.  vs.  BEANES.  JUSE. 


EHKOR  to  the  General  Court.  Debt  on  a  bond  for  the 
payment  of  money,  dated  in-  1797,  executed  by  the  intes- 
tate  of  the  appellant  to  the  appellee.  Payment  and  plene  " 
ailminisirarit  were  pleaded,  to  which  there  were  the  gene- 
ral  replications-,  and  issues  joined.  The  facts  were  these: 
The  bond,  on  which  the  suit  was  brought,  was  executed 
by  Frank  Lecke,  the  obligor,  who  died  intestate,  and  8. 
Lecke  took  out  letters  of  administration  on  his  estate,  and 
gave  bond  as  the  law  required,  for  its  due  administration. 
S.  Lccke  died  intestate,  without  having  returned  an  inven- 
tory on  the  estate  of  F.  Leeke.  S.  Hepburn,  the  defend- 
ant, (now  appellant,)  after  the  death  of  S.  Lechc,  took  out 
letters  of  administration  de  bonis  non  on  the  estate  of  F. 
Lecke,  and  gave  bond  for  the  due  administration  of  the  es- 
tate of  F.  Lccke,  unadministered  by  «$*.  Lecke.  Jicpbnrn 
did  not  return  an  inventory  on  the  estate  of/!  Leelcc  with- 
in twelve  months  from  taking  out  the  letters  debonisnon, 
jior  had  he  done  so  at  the  time  of  bringing  this  suit.  The 
question  submitted  oil  these  facts  to  the  court  was,  whe- 


<    tSKS    IN  T1IK  COUUT  OF 


tLer  '  --uffirivnt  to    dnr^c    the   defendant   below 

with  tin-  debt  for  which  (he  Miit  «;:s  instituted?  'I'hc  %e~ 
iK-r.il  court,  :it  October  (emu  1804,  were  of  opinion  they 
v.  eit  MI  (licit1  nt.  arid  ^av««  judgment  for  the  pl;iiatill'.  'I'hc 
tlcfeiulant  brought  l!ie  present  writ  of  error. 

The  cause  was  argued  in  this  court  before  POLK,    1' 

CHAV.V,     Nl<   HOI.MJN    Lt!ld     I'.'.Ml.,    J. 

din  Cruder,  for  the  Plaintiff  in  error,   cited  Morgan  vs. 
AA.'ik,  tt  V.T.  (ante  f>8.)     Wilton's  rx*r,  vs.  .V///.  ' 
:•:    aiul  Pinked  Eild.  345,  34ti. 

A'//  «/.///",  for  the  Defendant  in  error,   cited   Swirib.  420; 
ami  the  act  of  1798,  ch.  10J. 

JUDGMENT   HEVERSKO. 


Jv-  GAXTT  vs.   BOWIK'S  Adm'r. 

SAME  vs.  SA.MK. 


ArrF.iT.s  from   Prlvcf-Gconr^s  County  Court,     They 

mi  «un-ty  for  f  P,  J 

^'inr'i"!1  o"'  AoC  wei'e  two  Actions  of  </r;6/  on  joint  arid  several  bonds,  giwn 

if  £*«*«*•   *'ie   Appellant,   as  -trustee  appointed    by   (he  court  of 

«^-.r  ''V.viMK  chancery    for  the   sale   of  the  real  estate  of  J.  L\  •<  >  y/(W. 

,ai  olr  n",i  each  by  F.  Howie,  with    the  aprellee's  intestate,  and  J. 

bi  ^"efirimVi.*  /irvwn,  his   sureties^  each   bond  M-HS    conditioned  for  the 

».  •  lunutrmMi  r  paymer.t   of  £19    5    0.      The  (kTendant,    (now    ap;  • 

i  each  ca>e  pleaded  jun/mcnl  by   his   intestate,    to  which 

•!,ere  was  the  jrcneral  n-itlication,  and  i>«m-  joined. 

,,4 
•!      1.  At  the   trial   of  the  nrtt  cause  at   -v  term 

• 


o'^VIn  18°1-  after  the  jury  were  sworn,  the  defendant   produced 
ml  i.fti-rrd  to  filetlie  following  account  in  bar.     "Thomas 

off-T'd  «<«   r<  art  a 

mi-r  .«i,  f;rt^/?    trustee    for   the  creditors  of  John  Evcri/Uld.  to 

Cfl   •  f.  •* 


!".J<ltr  Hu'iir,  Dr. 

To  the   sum  adjudged  to  be  due  me  by  the  chancel 
)<»r  as  my    {uoportion  of  the  anjount  of  the  sn 
John  7.  'i  real  estate, 

-"   ill-  m  i    •     i       ,l  i      •       •  •  n'       i   •         i       I  11      .    .1 

To  which  (he  plaintiff  oDjecteu.     But  the  county 
M"  overruled    the  objection,  and  permitted  the  account  to  be 
filed,  and  the  same  \>a*  filed.     Tlic  plaintiff  excepted. 

»'l    ••'!.£ 

,-  i.ijit  r«  r.f  ihr  nir.i  clue  to  F  B    abn\r  nL'Dt  d,  ii.t!  daiiiii-il  lo   be  «Ct 

^-LIJ  In  liirn  mil   nf  \hr  f»ro- 

•       n  .1  !•   U 

tr.»lili—  We.'    ,  ^»ct  WM  nwl  ... 


OF  MARYLAND. 

'2.  At  the  trial  of  the  second  cause  at  .fyriV  term  1 802.  it  1  800 
having  been  agreed  between  the  parties  that  the  plea  of 
discount  might  be  pleaded  and  made  up  in  a  regular  man- 
ner, and  that  any  tiling  might  be  given  in  evidence,  which 
could  legally  be  given  in  evidence  under  that  plea,  the 
plaintiff  offered  in  evidence,  that  the  bond  on  which  this 
suit  was  brought  was  given  by  F.  Bowie,  as  the  principal 
obligor,  and  A.  Bowie,  deceased*,  And  J.  Brown,  his  sure- 
ties, to  the  plaintiff,  as  trustee  for  the  sale  of  J.  EversfieliFs 
real  estate,  and  that  the  money  claimed  to  be  due  thereon 
is  not  claimed  by  the  plaintiff  in  his  individual  capacity, 
but  as  trustee  as  aforesaid.  To  establish  the  plea  of  dis- 
count in  this  cause,  and  to  have  the  account  in  bar  men- 
tioned therein  discounted  out  of  the  bond  on  which  this 
suit  is  brought,  the  defendant  offered  in  evidence  a  copy, 
under  seal,  of  the  decree  made  in  the  court  of  chancery 
in  the  case  of  the  creditors  of  John  Eversfidd,  deceased, 
against  Mary,  his  only  daughter  and  heir,  decreeing  that 
the  real  estate  of  the  said  Eversficld,  which  descended  to 
his  daughter  Mary,  be  soUl  for  the  payment  of  the  debts 
of  her  father,  and  that  T.  Gantf,  (the  plaintiff,)  be  ap- 
pointed trustee  to  sell  the  said  real  estate;  that  he  should 
divide  the  purchase  money  into  six  or  more  equal  parts, 
and  take  a  separate  bond  for  each  part,  in  ordar  that  the 
same  might  be  assigned  amongst  the  creditors  in  case  they 
should  so  elect,  anil  it  should  appear  to  the  court  proper  to 
be  so  done.  That  he  should  bring  into  court  the  money 
arising  from  the  sale,  to  be  applied  in  satisfying  just  claims 
against  the  deceased.  Also  a  copy,  under  seal,  of  the  re- 
port made  by  the  trustee  of  the  sale  of  the  said  real  estate, 
and  the  chancellor's  order  ratifying  the  same;  and  the  au- 
ditor's statement  of  the  proportions  due  to  the  creditors, 
and  among  others,  to  F.  Bowie,  of  ^§28  12  I,  and 
£18  18  Ijto/1.  Bowie,  &  Co.  £T"  14  4;  to  Ji.  Bowie, 
(the defendant's  intestate,)  £6  16  11,  and  to  Contecs  and 
Jjowies  £\5  17  10.  Which  statement  was  approved  and 
ratified  by  the  chancellor.  The  defendant  also  offered  to 
prove,  that  F.  Bowie  mentioned  therein,  is  the  same  F. 
Bowie  mentioned  in  the  bond  on  which  this  suit  is  brought. 
The  plaintiff  objected  to  the  copy  of  the  decree,  &c,  being 
read  in  evidence.  But  the  court,  [Sprigg*  Ch.  J.]}  over- 
ruled the  objection,  and  permitted  the  same  to  be  read,  and 
it  Wft»  read  accordingly.  The  plaintiff  Cxceoted. 


376  i  ASES  IN  THE  COUttT  OF  A'.M'KALS 

1SOP.  .-,.  The  plaintiff  (o  prove   that  /'.  Brut-it,  was  one  of  the 

i  (ln»  administration  bond  on  the  perM.i.a! 
of  J.  A'ci  r*ful.  I,  and  (hat  the  personal  estate  had  been  luir,- 
applied,  and  not  loyally  administered,  ofl'cred  in  evidence 
the  administration  b»>nd,  arul  an  account  signed  by  F. 
Jiotrie,  for  the  administratrix,  and  intending  to  prove 
thereby  that  /'.  Jion'ic  was  not  er.titled  to  a  proportion  of 
the  sales  of  the  real  estate  o!  .7.  £ver*field,  equal  to  the 
hums  awarded  to  him.  Tlie  defendant  objected  to  the 
same  bem;j  proved  and  read  in  evidence;  and  tne  county 
court,  [fyrips,  Ch.  J.  ami  Duckett,  A.  J.]  being  divided 
in  opinion,  the  same  was  not  permitted  to  be  proved  or 
offered  in  evidence.  The  plaintiff  exempted.  Verdicts  and 
jui'^meuts  in  both  cases  for  the  defendant,  and  the  plain- 
tiff prosecuted  these  appeals. 

The  cnn^rs  were  argued   before   CHASF,   Ch.  J. 
x,  NICHOLSOX,  ami  KUILE,  J.  bj 


•-,  for  the  Appellant;  and  by 
T.  Buchanan,  for  the  Appellee. 

THK  COURT  dissented  from  the  opinions  of  the  conrt 
Iwlou,  ^iveii  iu  the  /<V.s7  and  second  bill*  of  exceptions,  as 
herein  staled,  and  concurred  with  that  court  in  the  opiuiuu 
in  the  Ihird  bill  of  exceptions.  • 


JCDGMEXTS    REVERSED,   AND  PROCEDENDOS  AAV  A  JlDF.D.' 


JUKR.  BAHM  -  fl.  HLACKISTO.V,  et  a/. 

APPEAL  from  Charles  County   Court.     This  was  an  ac- 
'">ti  of  avtiUiiifixtt,  brought  by  the   appellees,    aiul    entered 
,'H "H',!!,«J  f'»r  the  use  <      '  Ilohcrtson,  aj;aiii-,t  the  appellant.   The 

-•c!:iration  contained  a  count  for  goods,   wares  and    mer- 
Ih^ti^r'Tiid^chandizM,  properly  ch,ir-e;d)le  in  account,  a>  by  a  pirticu- 
I  .1  a     'Hint,  ivc.  a  count  Kir  iu;iney   paid,  laid  out  and  ex- 
•  .-nili-d,  and  a  count  on  a  quantum  mcn<if  for  ^oods,  &c. 
'••  prnperfy  (  har^eable    in   account,    sold  and  delivered.     An 
••o-.mt  v..i>  fded  \viih  the  declaration,  in  \\liii-li1he.  defen- 
:  .:  ..c'd  :i-   debtor   to   the  plaintiff-.  <\  "f 

ITDO,   "to   1  hhd.  sugar,   p.   bill  p.  Mr.  .In inn 

• 

i    ni.p.-»U.  »io»»r»ir.  will    r.-iniii  a    HIP    . 
- ..    »  .  •  ..  n  i -,u  «uJ  dul  fc-.c   *  difvclwn   w   (he  j'ir>,  although   uu    :..- 


OF  MARYLAND.  377- 

£tit>ert*on,  on  90  days  credit,  SIT4  55."  At  the  trial  of  1809. 
the  cause,  the  defendant  moved  the  court  to  direct  the 
jury,  that  if  they  find  from  the  evidence  that  the  plaintiffs 
sold  and  delivered  to  the  defendant  the  sugar  mentioned 
in  the  declaration,  under  a  parol  agreement  with  James 
Robertson,  (for  whose  use  the  suit  is  endorsed  on  the  re-. 
cord,)  that  he  Robertson  would  pay  for  the  sugar  if  the  de- 
fendant did  not,  and  that  Robertson  did  pay  the  plaintifts 
for  the  sugar,  in  virtue  of  his  agreement,  at  the  request  of 
the  phiiniifl's,  that  then  the  action  cannot  be  maintained  in 
the  names  of  the  plaintiffs,  for  the  use  of  Robertson,  but 
that  Robertson  should  have  brought  an  action  in  his  own 
name  for  money  advanced,  or  laid  out  and  expended, 
for  the  defendant.  Which  opinion  and  direction  the 
county  court,  [Sprigg,  Ch.  J.]  refused  to  give  to  the 
jury.  The  defendant  excepted;  and  the  verdict  and  judg- 
ment being  for  the  plaintiffs,  the  defendant  prosecuted  this 
appeal. 

The  cause  was  argued  before  CHASE,  Clu  J.  BUCHANAN, 
and  NICHOLSON,  J. 

T.  Buchanan^  for  the  Appellant,  contended,  that  the 
judgment  of  the  court  below  must  be  reversed.  That  it 
was  too  plain  a  case  to  require  an  argument. 

Shaaff*  for  the  Appellees.  The  claim  is  a  proper  one 
against  the  appellant,  yet  the  action  may  have  been  mis-^ 
conceived.  This  court  can  only  look  at  the  declaration 
and  the  bill  of  exceptions.  The  court  below  were  right 
in  refusing  to  give  the  opinion  prayed  for,  if  there  was  no 
Evidence  in  the  case.  There  are  no  facts  stated  in  the 
bill  of  exceptions,  but  a  hypothetical  opinion  prayed  to  be 
given  by  the  court,  which  the  court  very  properly  refused 
to  give.  No  evidence  was  offered  that  the  money  was 
paid  by  Robertson,  or  any  agreement  that  he  would  pay  it, 
if  the  defendant  did  not;  and  this  court  cannot  say  that 
the  court  below  erred  in  refusing  to  give  an  opinion  where 
»o  facts  were  proved  to  justify  such  opinion  being  given. 
It  is  not  stated  that  the  defendant  offered  to  prove  the  fact 
of  payment  by  Robertson,  nor  that  the  plaintiffs  had  been 
paid.  If  the  judgment  is  reversed,  this  court  will  say 
thai  the  opinion  ought  to  have  been  given  by  the  court  be- 
!ow,  although  founded  on  no  facts.  It  cannot  be  inferred 
TOL.  n.  48 


CASES  IN  THE  COURT  OF 

1809  by  <!iis  court  judicially,  that  there  was  any  evidence  offered 
at  all.  This  court  cannot  travel  out  of  the  record.  It  is 
important  that  facts  should  be  stated;  and  this  court  can- 
not reverse  this  judgment,  as  there  was  no  statement  of 
facts  upon  which  the  opinion  and  direction,  as  prayed, 
could  be  given. 

T.  Ruchanan*  in  reply.  Hypothetical  opinions  have 
been  often  given  in  the  lale  general  court,  and  courts  do 
so  when  they  do  not  require  the  whole  facts  spread  upon 
the  record.  It  is  done  to  prevent  the  drawing  up  the 
farts,  and  crowding  the  record,  and  to  save  expense  to  the 
parties,  Such  was  the  practice  in  the  cases  of  /*airrcnce 
vs.  fievalt)  (October  term  1794. )  Mahony  vs.  rfshton,  4 
Ilarr.  Sf  M"Hen.  296,.  505.  Newman  vs.  Bforrti,  4  Hurr. 
$•  Mllen.  421.  Queen  vs.  Jlshton,  S  Ilarr.  <$•  J/'//rn.  3.i9. 
Jforthbifflon  vs.  filthy,  (October  term  1791;)  and  /. 
vs.  AAddletorii  (May  term  1T93.)  Will  it  be  said,  that 
because  no  facts  are  stated,  this  court  will  not  review 
the  decision  of  the  court  below?  It  may  be  inferred  that 
the  evidence  was  offered,  or  the  court  below  would  not 
have  been  called  on  to  give  the  opinion  and  direction  a<? 
prayed. 

CHASE,  Ch.  J.  In  every  case  where  the  court  are  ca'led 
upon  to  give  a  direction  to  the  jury,  the  facts  should  ap- 
pear, and  the  opinion  of  the  court  will  depend  upon  the 
nature  of  the  evidence,  and  unless  it  does  appear  what  the 
facts  are,  it  cannot  be  said  the  court  erred  in  their  opinion 
by  refusing  to  give  the  opinion  asked  for.  If  a  contrary 
practice  prevailed,  the  court  might  be  called  upon  to  decide 
upon  questions  not  arising  in  the  case.  I  am  of  opinion, 
that  the  bill  of  exceptions  in  this  case  ought  not  to  be  re- 
tained by  this  court. 

BUCHANAN,  J.   As  the  court  below  has  not  stated   that 
they  refused  the  prayer,  because  the  facts  were  net  - 
or  proved,  this  court  are  bound  to  decide  on  the  law  in  the 
case.     The  most  regular  way  would-be  to  state  the  (acts 
or  that  there  were  no  such  facts,   if  none  existed  in  the 
case.    If  in  this  case  there  had  been   no  facts  to  justify 
the  opinion  being  given,  the  plaintiffs  should  not  have 
in  the  bill  of  exceptions  that   the  facts   did  not  exist.     As 
a  matter  of  practice,  the  evidence  should  be  stated.     It  is 


OF  MARYLAND.  37$ 

my  opinion,  that  the  bill  of  exceptions  taken  in  the  case       1809. 
ou^ht  to  be  retained.  _l~  ~* "~* 

LoudermMI 

v$ 

NICHOLSON,  J.  concurred  with  BUCHANAN,  J. 

JUDGMENT  REVERSED. 


LOUDE^MAN,  Garnishee  of  HARRISON  vs.  WILSON.     -       JUNE 
ERROR  to  the  General  Court.     Attachment  on  warrant:    A  .'""l  of  ™>- 

'  ney  due  £  owiug, 

and  the  case  was,   that  at  the  time  of  issuing  the  attach-  p?es,wh"g^nenc 

ment  from  the  county  court,  Harrison,  the  original  defen"  work"»nd  ftbou". 

dant,  owed  f-Tifsont  the  plaintiff,  (now  appellee)  the  amount  man? 

of  the  account  exhibited;  Louderman,  the  garnishee,  was  "  'tacln 

indebted  to  Harrison  in  the  sum  of  g35,  which  sum,    by  m^!5 

express  agreement,  was  to  be  paid  and  satisfied  in  work 

and  labour  by  the  garnishee  for  Harrison,  when  requested. 

No  demand  was  ever  made  upon  the  garnishee-  ta  do  the 

work,  but  he  was  always  ready  to  do  it.     The  county 

court  decided,  that  it  was  not  a  credit  in  the  hands  of  the 

garnishee  which  could  be  attached  in  virtue  of  the  acts  of 

1715,  ch.  40,  and  1795,  e/t.  56;  and  judgment  being  render- 

ed for  the  defendant  in  the  county  court,  the  plaintiff  ap- 

pealed to  the  general   court,  where  the  judgment  of  the 

county  court  was  reversed  at  May  term  1804,  and  zproce- 

dendo  awarded,     The  appellee  brought  a  writ  of  error  to 

this  court. 

The  cause  was   argued   before  POLK,    BUCHANAN,    NI- 
CHOLSON, and  EARLS,  J.  by 

Kell,  for  the  Plaintifl  in  error,  and  6y 
Gwynn,  for_the  Defendant  in  error. 

JUDGMENT  OF  REVERSAL  AFIIRMEB. 


380  CASKS  IN  THE  COURT  OF  APPEALS 

HAM.  vs.  GirriNos's  Lessee. 


ERROR  to  the  General  Court.     In  this  case  there  wan  a 
proccilendo  from  the  late  court  of  appeals,  diu-i-tin^  a  new 
I'tino       trjai  of  an  action  of  ejectment,  (which  had  been  tiii-d  in  the 

If  O*  no«arwon 

of  iand^  W^pono  j,enera|  COUit  at  May  term  1800,)  for  50  am  -  ol  arable 
wnhVchr'ne«-drii  n.',  land.  1 0  acres  of  meailow,  and  K  0  ;iur,  of  wowiiand,  being 
mnr'thr'part  of  a  tract  of  land  called  //;//'»  /  -.  -i',utr  in  /»«//*- 
?n^7dVn£rana  more  county.  (Seel  Hurr.  S,-  Johns.  14.)  The  defendant 
UnTu^"'1'01'*"  took  defence  for  Cullen's  Lot,  and  C'ullen's  Addition,  on 
f.,)\lTr?f,,f*i  t'a.t  the  plots  made  and  returned.  Judgment  was  entered 
bna  fOTfaajferrj  against  the  casual  ejector  for  all  the  lands  undefended. 

lycrtm]      ou      the 

?«'n7ii"b?l"r".lun  ^'  The  plaintiff  at  the  new  trial  at  May  term  1 805,  pro- 
£h!^«rr*tr.cft  thi,duced  in  evidence  a  certificate  of  survey  of  a  tract  of  land  cal- 

'vVt'hi:  led  HWs  Forest,  made  for  Jficlinnl  Hill  on  the  4ih  of  Octo- 

111  ber  1685-4,  in  pursuance  of  a  warrant  granted  him  for  HMJO 

on*  /.£ lh.- T^n-'  acres,  on  the  Slst  of  July  1683,  "lying  in  Baltimore  coun- 

i '  trv-Vn'r  ty,  in  the  woods  above  the  head  of  a  river  called  (ivnpnw- 
{••drnirntofwhicu  der  river,  and  upon  the  S  side  of  the  N  branch  of  the  said 
i»r«i  dVchm-d  d,-  rivcr.  beginning  at  a  bounded  red  oak  standing  at  the  end 
mittrd  to ri«- •"*•  <,f  the  N  line  of  a  parcel  of  land  formerly  taken  up  fur 

dmrr  on  <b-  part 

of  thr  ***y*Jtmu  Thompson  (a],  and  running  from  thence  W  parallel 

in  an  action  of  e> 

iv^'Ihe'wrn^''" "n.i  ^^  *'ie  sa|f^  'aiu^  ^or  *'ie  lcn^"  °'  ^20  perches,  then  run- 
in«r*  '*11drre1"h«  ning  from  tne  en<^  of  the  W  line  N  310  perches,  then  run- 
dftfa  (s^rftor  of  ning  from  the  end  of  the  N  line,  E  520  perches,  until  it 
^"'iiVuVar' c"mn"y*  intersects  the  land  called  Clark-wiSs  Hope,  then  running 

nn-l  having  a  tcm- 

in  another  oniiity,  in  iwilhrr  of»h'»h  connti*^  dort  thr  land  li»-.  nckiiowlntpMlhp  il.rd  in  thr  conn* 
tv  iii  which  hit  tVnin-iraiy  rr-»li  tin  it,  tueh  d.  vd  i>  not  xc.'xl  .m>l  valid  in  law  tu  patt  and  irant- 
Str  1)1*  pi~anior'i  intrmt  in  tin-  l>-nd 

A  temporary  ri  tidt  nrr  '"  anv  f """'y  "'  ''"  '""''  '•  not  «"fli<-i'  nt  in  ciiablr  a  grant rr.  bfinp  a  ri- 
ti/<-ti  of'thr  tt'atr.  to  artiiowlnlge  a  Jtrd,  during  nuh  Umpotary  rtiidcnrr,  fur  bud  i)nu-  in  any 
uilii-r  oMiniy  ->f  thf  ttatf. 

1'hr  w>r>(t  "Irfn'hi  atit/iorited  and  atiignrd,"  in  a  cprtificntr  of  tlie  clrrk  nf  a  roiintT  court  to  a 
rlrrd  urtrv  l»«  ju«lic«  ol  ihv  rracc  of  thni  county,  i.  i  «»li«i  irii.il  r.  ; 

thr  I'in-ciimit.  and  wiihin  th«-  mennirr  ot  tin-  31-1  ct"  Xm-rnttrr  l.(>fi,  cf>.  14,  and  arc  words  ot  the 
tamr  impnrt  a%  "itiily  rommittivnnt  arif  nrorn  '' 

M'b«-ri-  th<  ili  I-  nlani  in  an  action  nf  >-ji  it,,, cut,  WIM  in  r,oi«n«jon  of  lOOacro  of  land,  hyrnflniiirrt 
and  ettltlT»tiun,  fur  13  yran,  and  il.rn  rn!arr>-d  hi<  rnrlon.iTt  MI  »»  lo  nirlii(|.  ]  •(>  cms  and  he 
|iui»ln  j  ihr  «»ni<-.  vi  >  ntai  f  <l.  !•»  •  ncliiti TI  •  t<ir  ix  >run  ihcrmtlt  r,  churning  tin-  .aim  at  )II«UMU— 
Brill,  that  lir  h».'  titli-  lo  ihr  I"-.)  acrrt  h>  niKiTMii)  |)<.^^.  wion. 

Whrrc  tbr  '  •     •.  d  in  a  (rrant  of  land  d'-cribr  it  at  "IT'"?  on    ibr    •  no*drr 

rivrr,  liccmnii'ir  at  a  boi  • 

and  riiniiiiHt  ««i    *<X>  pt .  to  a  li"iii.d<  d  oak  ttnndirif  b'j  thr  Cm- 

Mid  ink."  fee  —ll'dl.  thnt  :\.<  >  tl»  ix.t  «\ .  i..it  t..  l.ind  ih>  fir\<  |MI>-  lo  Urn  limit  al  ll.r  Cin-at  Kallt, 
•  ttb'irrh  H"  t  tin- trr»  or  plart-  wh-n-i- 

'I  hr  drrlaiaii.'in  •  |iri«nn.  th'n  t»  izrd  of  a  p-.rtiru  nr  tract  of  land  not  loeaU-d  on  the 

ploti  in  ihr  rnu»  .  •  '»  rvidrntc  1 

rinl  i, I  tin    Qrtt  Inir  of  thnt  tract.  »J.ith  »av  thr  brKiiuiiiiK  i>1  tin    .and    rlnini'd  and  i«.cai.  .: 
plott  hy  thr  dfrffiulant.— HriiL  that  thi-  dtclaraliopt  v>.  i«-  i.oi  »ilnn  Mli'r  in  mdrncr. 

In    an  action  of  •  j.-r'n,i  nt  for  JO  serrt  it  arab.f  land,  10  atnt  nt  n»  ndow,  and  100  r  cm  ,  : 
fetid,  part  of  a  tract  of  land  «all«d  //  F,  Ihritii),  h\  tl,<ir  "   ili<-   tn;r    'n.  <iion   uf  il.it 

trart.  and  al>o  the  loralif  in  •  1  rtln  r  trarti  of  land  fur  whirb  tin-  •••('•  nHnnt  n.-.k  ill  (• 
found  for  tar  plaintiff  »h  thr    land    is'itd  HI.  at    liHui.d    by    -him,  vhnh   IK  i  rl.-m  of  : 
(ram,  to  located  by  tbt-rn,  and  t'diili  itward  of  •  diviiion  |mv    l.u>,.,, 


Irtaor  and  J  S ,  fiom  a  {Mrtirular  IH.IHI  in  anoilirr  —it  mi.  ih.it  tin    i  !  •  .ludt'it  i.'  <l><  r<-un 

' ,  vrre  not  uncertain,  and  »-rrr  not  hit  mere  laiul  tliitit.lhe  piumliffi.Iaiu.tu  iu  hit  activn. 

CtUcd  "Tfarrpscn's  Cboitt" 


OF  MARYLAND. 

with  (he  said  land,  and  a  parcel  of  land  called  Gassaway's       1809. 
Ridge,  by  a  straight  lino  to  the  first  bounded  tree,  contain- 
ing and  laid  out  for  1CCO  acres  of  land  more  or  less."  Also  a 
patent  granted  to  Richard  Hill.,  on  the  10th  of  August  1684, 
for  that  land.     Also  the  ivill  of  Richard  Hill,  dated  the  20th 
of  October  1700,  whereby  he  devised  to  his  sons  Richard, 
Joseph  and  Henry,  by  a  residuary  devise  in  the  will,    the 
said  land,  equally  lo  be  divided,  to  them  and  their   heirs, 
for  ever.     Also  the  will  of  Joseph  Hill,  dated   the  21st  of 
May  1724,  whereby  he  devised  the  remainder  of  his  estate, 
both  real  and  personal,  including  the  said  tract  of  land,  to 
his  brother  Henry  Hill,  (son  of  the  patentee, )  and  his  heirs, 
for  ever.     Also  the  entries  on  the  Rent  Roll,  showing  that 
/////"*  Forest,  1000  acres,  was  in  possession  of  Joseph  //i//, 
and  statin"1   therein  an    alienation  of  the  land   from  Henry 
Hill  to  Joseph  Hill,  on  the  27th  of  July  1737.     Also  a  co- 
py of  a  deed  from  Henry  Hill,  son  of  the  patentee,  to  Jo- 
seph Hill,  dated   the  27th  of  July    1737,  and    the   record 
book,  with  the  deed    therein    recorded,   in   the  following 
words:     (See    it    set  forth   in  I     Harr.   <$•    Johns.   16.) 
Also  the  will   of  Joseph  Hill,   datpd  the  20th  of  October 
1761,  whereby  he   devised    to  his  granddaughter,  Henry 
Margaret  Hill,  all  the  remainder  ot  his  tract  of  land  call- 
ed  HiWs   Forest,   not  devised  to  Nathaniel  and  Joseph 
Richardson.     He  devised  to  Joseph  Richardson  200  acres, 
to  be  laid  off  at  the  easternmost  epd  of  Hill's  Forest,  and  to 
Nathaniel  Richardson  200  acres,  to  be  laid  off  at  the  wes- 
termost.  end  ot  IlilPs  Forest,  and  the  residue,  600  acres  in 
the  middle,    he  devised  to  his  granddaughter  Henry  Mar- 
garet Hill,  ('now  Ogle,)  in  fee.     Also  a  deed  from  Joseph 
Richardson  to  Charles  Wells,  dated  the  27th   of  March 
J779,  for  200  acres  of  land,  part  of  the  land  called  IIHPs 
Forest.     Also  a  deed  from   Charles  Wtlla  to  George  Bu- 
thanan,  dated  the  9th  of  October  1784,  for  the  200  acres 
of  land,  part  of  Hill's  Forest.     Also  a  deed  from  George 
Buchanan  to  James  Gittings,  the  lessor  of  the  plaintiff, 
dated  the  28th  of  December  1789,  for  the  last  mentioned 
200  acres  of  land.     Also  a   deed  from   Benjamin  Ogle, 
and  Henry  Margaret  his  wife,  to  Janws  Bosley,  dated  the 
25th  of  June  1777,  for  part  of  the  tract  called  Hill's  Forest, 
supposed  to  contain  430  acres.      Also  a  deed  from  James 
Bosky  to  George  Buchanan,  dated  the  16th  of  June  1784, 
for.  the  last  inentitued  p,ut  of  HlWs  Fvreft*    A'so  a 


CASES  IN  TUKCOritT  ov  APPEALS 

U'  fn.in  (it  >r?t.  ftttchimtm   to  Janits  VUl'uiga,  the  lessor  of 

the  plaintiff,  dated  the  C8th  of  December  17t:'.i,  fur  thu 
la*t  mentioned  part  of  7it//*.»  Forest.  Also  the  proprietary 
•'<>«/..v  tVom  17.'-)" 4  to  17(>£,  slum  in;;  that  Joseph  HUL 
\va>  charged  with  UK'O  nctes  of //LTs  J-\>rr*li  also  the 
«ltsbt  books  from  1762  to  1771,  shewing  that  Joseph  I/iir* 
were  charged  with  the  *aid  land;  ami  also  the  debt 
books  in  1771.  showing  that  Jo.icph  Jiichtirdson  was  charg- 
ed with  £00  an*1-.  .\nlhunid  Richardson  with  200  at  re-, 
Mid  Henry  M.  Hill  with  GOO  acres  of  /////"*  Forutl,  The 
defendant  objected  to  the  reading  of  the  deed  before  men- 
tiiiH'd,  from  Ucury  Hill  to.Jonej>h  Hill*  dated  the  27th  of 
July  1737. 

Martin,  (Attorney  General,}  for  the  Plaintiff,  cited  Bulk 
N.  P.  £54.     Shjlf,  £03,  445.     2  Btic.  M.  308.     Kendall's 
S  J.ev.  387,  888.     Medlicoll  rs.  .'>y/jer,  1  Mod.  4. 
Martin  vs  Monke,  5  Moil.  £11.      Hr  Edward  S 
ca>e,   10  Mud.  8    Combs  vs.  fiowell,  2   Vtrn.  591. 

r*.  Davis,   6  3forf.  225.      Tuyfor  vs.  Jones^  1    //(/. 
746.       Jl'owlward  r*.  Jtston,  1    r"e«/.  296,  297. 
B».  Melhui*ht  Jmbl.  247,  248      GV/6.  /,.  £.  97, 
98,  101.      Lofffs   Gilb.  102.      2  flac.  .^i.  tit.  Evitlem-r, 
(Y)  646.    3  Com.  /)i^.  tit.  Evidence,  (B.  2;)  and  Smarllt 
vs.  H'iUiama,  1  AWA:.  280,  281. 

(  H\SK,  Ch.  J.  The  court  were  of  opinion,  in  the  former 
trial  between  these  parties,  that  a  copy  of  a  deed  which 
reeds  no  enrolment  is  not  evidence.  But  the  present  ques- 
tion is,  whether  the  iiif>pf rimtu  of  the  enrolment  of  a  deed, 
which  requires  no  enrolment,  is  good  evidence,  it  being 
accompanied  wiih  other  circumstances,  such  as  antiquity 
ajid  possession  going  with  it. 

The  court  are  of  opinion,  that  If  possession  is  found  to 
have  gone  agreeably  to  the  deed,  it  being  an  ancient  deed, 
/he  insj)fxhnn8  nf  the  deed,  though  it  does  not  require  re- 
cording, may  be  read  in  evidence,  and  the  deed  is  good  ami 
effectual  to  pass  the  land.  But  if  the  jury  do  net  find 
that  possession  has  gone  with  the  deed,  then  the  iwtpeximus 
}^  r.i.t  evidence,  and  the  jury  are  to  disregard  the  deed. 

The  court  consider  the  distinction  i»wdl  established. 

2.  The  defendant  objected  to  the  reading   in  evidence 
the  deed,  herein  before  mentioned,  from  Josrph  HichanLiOti 
t ..    ffnirlta  It  ells,  dated  the  27th  of  March   1779,   for  200 
«f  land,  part  of  Hiir*  Forest,  as  that  deed  was  not 
located  on  tl.e  plut*  returned  iu  the  cause. 


OF  MARYLAND.  383 

Martin,  (Attorney- General,)  for  the  Plaintiff,  referred  to        1809 
Hull's  Lessee  vn.  Cough,  \  Harr.  $•  Johns*  119. 

CHASE,  Ch.  J.  If  the  title  to  the  200  acres,  and  tlie  000 
acres,  are  united  in  the  same  person,  by  laying  down  the 
whole,  the  200  acres  are  sufficiently  located.  The  court 
are  of  opinion,  that  the  deed  may  be  read  in  evidence  to 
the  jury,  although  it  lias  not  been  particularly  located  on 
the  plots. 

5.  The  first  bill  of  exceptions.  The  deed  from  firnjamin 
Ogle,  and  wife,  to  James  Bosky,  having  been  adjudged 
defective  by  the  court  of  appeals,  and  the  judgment  in  the 
former  trial  between  tlve  parties  reversed,  because  of  the 
opinion  of  this  court  as  contained  in  the  second  bill  of  ex- 
ceptions, and  the  court  of  appeals  having  expressed  an 
opinion  that  the  plaintiff  might  give  evidence  that  Mr. 
Ogle  resided  in  Prin ce-  George's  county  at  the  time  he  ex- 
ecuted the  deed,  it  that  was  the  case,  and  the  plaintiff 
having  produced,  and  read  to  the  court  and  jury,  the  deed 
from  Benjamin  Ogle  and  Henry  Margaret  his  wife,  to 
Jfmcs  Bosky,  dated  the  25th  of  June  1777,  stated  to  bs 
"between  Benjamin  Ogle,  esquire,  and  Henry  Mariparef, 
his  wife,  of  Aiim-Arundd  county,  in  the  state  of  Maryland, 
of  the  one  part,  and  James  Bostey,  son  of  Charles,  of  />a'- 
limore  county,  in  the  state  aforesaid,  of  the  other  part," 
and  that  "for  and  in  consideration  of  the  sum  of  fourteen 
hundred  pounds  common  current  money,  to  them  in  hand 
already  paid,"  Ogle,  and  wife  granted,  &c.  to  Bosley.  "all 
their,  and  each  of  their  right,"  &c.  "of,  in  and  unto,  a 
certain  tract  or  parcel  of  land,  being  part  of  a  tract  of 
land  called  //#/'*  Forest,  lying  in  Baltimore  county,  con- 
taining by  estimation  four  hundred  and  thirty-one  acre«, 
with  all,"  &c.  This  deed  was  executed  by  Ogle,  and  wife, 
and  acknowledged  as  follows:  "He  it  remembered,  that  the 
within  named  Benjamin  Ogle,  esquire,  and  Henry  Mar- 
guret,  his  wife,  came  before  us  the  subscribers,  justice's  of 
the  peace  for  Prince- George' 's  county,  of  the  state  of  Ma- 
rt} I  and,  and  acknowledged  the  within  deed  to  be  their  act, 
«nd  the  lands  and  premises,,  with  their  appurtenances, 
thereby  bargained  and  sold,  to  be  the  estate  of  the  wit'liin 
named  James  Bosky,  son  of  Charles,  his  heirs  atid  as- 
signs, for  ever:  And  the  said  Ifehry  Margaret,  wife  to  the 
said  Benjamin  Ogle,  esquire,  being  by  us  examined  pri- 


384  <-'  A  - »•: ••*  IN  THE  COU RT  OF  A  r PEA' 

!£'  •  ly  out  i)f  the  hearing  of  hrr husband,  declared  that  she 

L^"v~x^       made  (he  above  acknowledgment -willingly  and  freely,  ;.:ul 

without   being   induced   thereto   bv  force  ;»r   threats  of  ill- 

On  i.*ngt 

u-a.^e  bv  her  husband,  or  fear  of  his  displeasure. 

Taken  and  cei  tilled,  Thos. 

Tims. 

At  the  foot  of  the  acknowledgment  w;t*  the  following 
certificate,  giv^n  by  the  clerk  of  Prince-George's  county 
court:  "Prince- George's  county,  to  wit:  In  testimony 
that  'fliomaa  Williams  and  Thomnx  Boyd,  gentlemen,  be- 
fore whom  the  above  acknowledgment  was  made,  and  who 
have  thereto  affixed  thch-  signatures,  were  at  the  time  of 
taking  and  affixing  the  same,  and  still  are,  two  of  the  jus- 
tices of  the  peace  for  the  county  afoiesaid,  legally  uutho- 
risetl mul  tssizned,  and  to  all  certificates  by  them  so  sign- 
ed, due  fiitli  and  credit  is  and  ought  to  be  given  as  well 
in  justice  courts,  as  thereout,  I  have  hereunto  set  my 
hand,  and  aflixed  the  public  seal  of  of- 
(Seal.)  fire,  this  1-Uh  day  of  July,  Anno  Domini 

1777. 

John  Read  Magrudcr,  Clk." 

The  deed,  with  the  several  endorsements  thereon,  was 
recorded  amongst  the  land  records  of  Baltimore  county, 
on  the  20th  of  September  1777.  "the  plaintiff  then  oRl-ml 
evidence  to  the  jury,  by  the  testimony  of  Itcnjamin  Ogle, 
esquire,  one  of  the  grantors  named  in  the  deed,  who  depos- 
ed that  in  1T7-J  he  became  seized  and  possessed  of  an  es- 
tate in  Prince-George's  county,  called  Belle  .tfj'r,  upon 
vhich  estate  there  then  was.  and  still  i*,  a  large  and  coin 
modious  furnished  huu>c;  that  he  considered  the  city  of 
Jlntutpoli*.  near  to  which  he  had  a  large  landed  estate,  as  the 
place  of  his  residence  from  the  year  1770  down  to  this 
time;  that  in  the  county  of  J.">i-  -.Irundel  he  voti-d,  v;i- 
summoned  to  serve  aa  a  jury  man.  and  ua>  permitted  to  en- 
jov  the  ri^ht  of  pasMii^  tlie  various  ferries  in  the  said  coun- 
ty without  pa\in^  fei-riairc.  none  of  which  privile»t-s  or 
immunities  were  ever  enjoyed  by  him  in  the  county  ..t 
Prince  ffcorge'a.  That  from  the  time  he  became  possessed 
of  the  estate  call  .//r.  until  the  year  1790,  it  w;n 

customary  for  him  occasionally,  every  year,  to  go  with  Ms 
family  to  that  e-tatr.  and  live  there  fora  lime,  sometiii"^ 
1"t  a  l<.i!j;er  and  sometime  for  a  shorter  period  of  time.  That 
on  the  25th  of  June  1777,  he  was  with  hi*  wifo  at 


OF  MARYLAND.  385 

called   Belle-Air,  in  Prince- George's  county,  (their   chil-        1809 
dren  bein^  at   West-  /liver,}    and  there,    together   with  his 
wife,  executed  ami  acknowledged   the  deed    from   himself 
and  wife  to  Janice  Bosleij.     Tli.it  lie  was  himself  in  the  ci- 
ty of  Annapolis  in    August  1777,    when  the    British   fleet 
passed  up  the  Chesapeake  bay,  but  that  his  family  were  then 
at  Belle-Air.  The  plaintiff,  with  the  consent  of  the  defen- 
dant, produced  and  read  in  evidence  the  deposition  of  John 
7/iomas  (a),  in   the    following   words:     "That   he    hath, - 
from  an   early  peiiod    of  his   life,    been   acquainted   with 
Benjamin  Ogle,  esquire,  and  with  his  lady;  that  Mr.  Ogle 
resided,  and  still  resides,  in  the  city  of  Annapolis,  where 
he  has  a  large  and  commodious  house  and  lot,  his  place  of 
residence,  and  near  to  which  city  he  held,  and  still  con- 
tinues to   luml,  a  large   and   valuable   landed   estate;   that 
previous  to  the  year  1777,  Mr.  Ogle  recovered,  by  a  suit 
in  chancery,   from  his  late  uncle,  Col.   Benjamin  Tusker^ 
a  valuable  landed  estate  in  Prince- George's  county,   and 
that  Mr.  Ogle,  during  the  summer  season,  generally,  with, 
his  lady,   spent  a  great  part  of  his   time  at  Belle  Air,  on 
the  land  recovered   as  aforesaid,   but  that   his  household 
furniture  and  servants  still  remained  at  his  dwelling-house 
in  Annapolis.     He  well  remembers  that  Mr.  Ogle  and  fa- 
mily remained  at  Annapolis  the  first  part  of  the  year  1777, 
lie  thinks  until   the  month   of  April,  or  the  beginning  of 
May,  and  that  Mr.  and  Mrs.    Ogle  were  at   Belle  Air  the 
latter  part  of  the   month  of  that  year.     In  June  of  the 
same  year,  this  affirmant  was  twice  at   Mr.  Ogle's  dwel- 
ling-house in  Annapolis,  where  he  and  his  lady  then  were, 
with  his  servants,  and  that   this  affirmant,  as  he  had  been, 
accustomed  for  many  years,  lodged  there.     He  may  have 
been  ofterier  with  them,  but  of  that  he  has  no  distinct  re- 
collection.    That  in  August  and  September  Mr.  and  Mrs. 
Ogle  were  at  Belle  Air;  that  in  the  fall  of  1777  his  kitch- 
en, in  Annapolis,  was  burnt  down.     However  they  were 
in  said  dwelling-house  in  the  spring  of  1778.     The  winter 
following  they  resided  in  the  now  government-house,  and 
remained  there  until  the  spring  of  1779.     That  he  always 
did,  and  doth  now,  consider  Annapolis  as  the  place  of  re- 
sidence of  Mr.    Ogle,   and    that  he    never  did   reside  iu 

(~aj  Mr.  Thomas  resided  at  West  River,  and  was  un&le  to  Mr*; 
Ogle. 

vox   n  40 


396  CASES    IN  TIIK  COl'KT  OF  APPF.ALS 


180D         Prince-George's  county:  his  rcii'i'vj;  tlicrc  in    the  .-m.imer 
"-v-*.'        se.iM-n,  he  conceived  as  a  vi-it  iVoin  Innne,  anil    nut  as  go- 
in.;  i«i  constitute  a  new  residence."'     The  pl.Vmtilf  aU" 
fcred  in  evidence,  by  the  testimony  of  Mrs.  Mart/  Ifitlonf, 
sister  to  Itcnjcrnin  O^h\  that  her  brother,  upon  his  marri- 
age, which  took  place  in  September  1770,    >>ettled  in   .In 
nupo'tis,  anil  lias  resided  there  e\er  since.      1'luit  when  he 
got  possession  of  his  estate   called    BtHc    .4'tr,  there    v 
upon  it  a  large  and  commodious  furnished  dweUin§4MUSej 
that  it  was  usual  for  him  to  go   occasionally    c\ery  year 
uith  his  family  and  spend   sometime  at    his  *rat;   that  .-he 
cannot  now  recollect  when  her  brother  first  bejjan  to  reside 
occasionally  at  his  said  country  seat,  nor  can  she  recollect 
the  time  or  season  of  the  year  when  he  usually  went  to  it, 
but  she  remembers   that  she   herself  spent  the    summer  of 
1777  at  Hath,  in  I'li-yin'm.  ami  upon  her  return  home  from 
Bath,  in  the  month  of  S<'|>ti'inl>er  1777.  she  called  at    the 
scat  of  her  brother  in  Prince-  George's  countv,  called  RcUe 
--,  and  spent   some  days  there;   at  that  time  her  brother 
and  his  family  were  residing    there.      Ueinjj  asked  by  the 
counsel  for  the    defendant,   whether  she    considered    ;; 
Air  or  .Annapolis  the  place  of  residence  of  her  brother?  she 
answered,  both;  that  in  her  estimation,  \\hen  a  gentleman 
had   a  town  house,  and    country    house,  and    occasionally 
spent  part  of  his  time  at  each  of  them,   he  resided    in  both 
of  them.     The   defendant   then    produced,  and    swore  to 
the  jury,  Henry  Margaret   Ogle  (a),   who  deposed,  (hat 
About  the  middle   of  May    1777,   her   maud  -mother   died; 
that  about  this  period,  or  some  short  time,  before,    MIC    vent 
her  children  to  ll'tst  Jiiicr,   in   Jnne-.'lriiinJd  county,  to 
the  house  of  her  uncle  Mr.  Jnfin    Thomas,  to  keep  them 
from  taking  the  small  pox,    which  then  prevailed  in  Jlnmt- 
polix,  that  the  children  continued  at  JIVs/  lih-ir  for  two 
or  three  months;  that  Mr.  Ogfe  and  herself,   and   at  times 

fa}  Tlie  counsel  fortlic  plaintiff1  objected  to  Mrs.  Qgle'x  l>cing 
.mined,  conteiuling1  tli.-it  s|i<-  w.n  cull,  <1  to  d  -fmt  IHT  own  <\?t  d. 

Thecaseof  ll'il-.t-i  ,••.  7  '.•/',..',   i  'lirr.^  M'H.n..',   \sSs. 

the  (Icfcndftiit's  counvl  to  slio*,  tlut  :i  \vitV  was  c-xntninul  to  | 

lh:»t   licr  hust):ind  li;nl  di-siroy  d  the  will  of  his  fattier,   u 

luiJ  devised  the  land  in  <{n<  ,t;on  to  his  v^i-.t 


CHASE,  Ch.  J.  The  Court  an-  of  opinion,  tW  Mrs.  Ogfr  i 
pal  and  competent    witness.     The  acknowledgment    of  t!i 

v«-,  :in-l  thr  d.'«-d  does  not   operate  to  con  - 
>rc  than  Mr.  Obit's  life-  estate,  and  tUc  verdict  ui  tlii»  c*»c 
vrould  not  be  evidence  lor  her  or  her  heirs. 


OF  MARYLAND. 

herself  only,  went  to  see  them   at    JVest  River,  and  in        1809. 
going    to    ll'eat   River  from    Annapolis,  and    from    West       ^— \— - J 
River    to    Annannlis,    she    and    Mr.     Ogle    occasionally  »» 

"*  Gitiingj 

called  at  Belle-Air,   their  scat  in  Prince-George**  coun- 
ty,   and  staid    one    or    two    nights;    but    she    does  not 
remember   ever  to   have   staid   at    Belle  Air  more    than 
two   nights,  unless   her   children    were   with   her.      That 
the  deed  from  Mr.  Ogle  and  herself  to  Boxley,  of  the  23th 
of  June  1777,  was  executed  at  Kcflc-Air,  on  one  of  those 
occasional  visits  when  she  and  Mr.  Ogle  were  passing  from 
Annapolis  to  West  River,  or  from  West  River  to  Annapo- 
lis.    That  it  was  executed  just  before  they  left  Belle  Air.^ 
which  she  well  remembers,  because,    seeing  persons    com- 
ing to  the  house,  she  was  afraid  she  should    be  detained  at 
Jiellc  Air;   that  the    persons   proved  to  be   the  party   who 
bought  the  land,  coming    to  tender   continental    money  in 
payment  of  it,  and  to  have  the  deed   executed.     That  she 
and  Mr.  Ogle  had  not  their   children  at   Belle  Air  in  the 
year  1777,  until  after  Mr.  Ogle's  return  from  Berkley  coun- 
ty.    That  Annapolis,  in  Anne-Arundel  county,  she  always 
considered    their  plac£  of    residence.     That    at  different 
times  of  the  year,  and  of  different  years,  they  occasionally 
spent  part  of  their   time  wi;h  their   family  at  Belle  Airt 
and  in   sotoe  years  they  went  to   Belie   Air  only   for   a 
day   or   two  at   a   time.      That    Mr.    Ogle,  has  a  large 
landed    estate   in    his    cultivation    nearly    adjoining    to 
Annapolis.      The   defendant  also  proved   by   Beiramin 
Ogle>  that  he  went  in   the  year   1777  to  Berkley  county, 
in     Virginia',    that    he    went    there  after   the    23th    of 
June  1777,  and  returned    before  the    10th  of  July    1777, 
and  that  in  1777  he  did    not  take   up  his   temporary   resi- 
dence at  Belle   Air,    until  after  his  return  from  Berkley. 
That  he  was  at  Belle  Air  in  1777,  before  the  execution  of 
the  deed,  and  at  its  execution,  but  does  not  remember  the 
time  he  went  there,  nor  how  long   he  staid    there.    That 
from  Annapolis  in  MV.  John   7'/winas's  at    West  River,   is 
14  miles,  to  Belle  Air  is  i8  miles,  and  from    Belle   Air  ta 
West  River  is   14  miles.     The   plaintiff  then   prayed  the 
opinion  of  the  court,  and  their  direction  to  the  jury,  that 
if  they  are  satisfied  from  the  evidence  that  Benjamin  Ogle. 
had  and  kept   two  dwelling-houses   furnished,   to  wit,  a 
town  house  and    country  house,  from  the  year  1774  to  the 
year  1780,  the  town  house  situate  in,  Annapolis,  iu  the 


388  C  A  S  K  S  1  N  Till:  COURT  OF  A  P  ; 


1809.  countv  of  .tfwjr-.'/rr/w/t1.',  the  country  house  situate  in  flic 
county  cf  J'rhict'-dror^''  .  .  (hat  il  mint;:  the  time  hi* 
re-idcnce  v  av  piiiicipiiilv  in  .  t).i»i>.  •.!!*,  t!,i>'  iti  each  of  the 
years  aforrsaid  he  ct  (  a-iun;;!!;.  \\cnt  \\ith  his  f;.mily  to  his 
country  house  in  /'rmrr-6'o  /-p-i's,  nnil  resided  thru-  for  a 
time,  sometimes  for  a  lon^n-  ;>"'l  Hum-tin.  rs  lor  a  shorter 
jM-iiod  in  each  of  the  yeais  aforoaiil,  and  that  It-  with  hi« 
wife  vcre,  on  tlie  £5th  of  June  1777,  at  l.-iv  country  house 
in  Prince  Crural'*  count  y,  and  then  and  tl.t  n>,  uifh  his 
wife.  executed  the  deed  of  that  date  to  Y»V.sYn;,  that  then 
the  deed,  so  executed,  was  and  is  u<>rd  and  -i:fli(  ici.t  in 
law  to  puss  and  transfer,  from  Ogle  to  .  l!  the  inte- 

rest which  Og'c  then  liad  in    and   to  th»>   lands   mentioned 
in,  and  intended  to  be  conveyed  by,  the  tit 

JMartin,  (Attorney  Gmeral,)  and  fl/ason,  for  tlio  j.lnin- 
tiff,  stated,  that  the*  question  was,  whetlu  r  Mr.  (  L.II  l,ad,«in 
tlie  testimony  in  the  cause,  such  a  living  or  residence  in 
Prime  -George*  »  county  as  to  justify  his  acknowledging  in 
that  county  the  deed  from  him  and  \\il<>  to  /!>j.*in/:  n. 
vhether  a  deed  acknowledged  in  Prince-  Grorgc's  county, 
before  two  justices  of  the  peace  of  that  count)',  for  Iain's 
lying  in  Baltimore  county,  by  persons  \\hoare  staU-d  in 
the  deed  to  be  of  Anne-Jlrvndd  county,  was  a  good  ar.d 
sufficient  deed  in  law  to  pass  and  transfer  the  estate  to  the 
grantee?  To  show  that  Mr.  Ogle  had  a  sufficient  n'sidencc 
in  Prince-  George*  s  county,  to  enable  liim  to  execute  the 
deed  in  that  county,  they  referred  to  tlie  acts  of  1715,  c/» 
47,  s.  8,  9,  and  November  17<iO,  c/i.  14.  .v.  2,  3.  .' 
Lee's  Lessee  vs  DniLIim.  2  Jhnr.  »y  M*Hcn  46.  ,/oltns. 
Did.  tit.  Ilmiile.  Foster's  Cr.  L.  7f-;  and  4  Cuke,  40. 

Pinknnji  An;,  Johnson  $•  Jfarjxr.  for  the  defendant, 
•tated,  that  the  question  submitted  to  the  court  was  U'hat 
constituted  a.  residence  within  the  meaning  of  the  act  of 
November  1766,  ch.  14,  *.  2,  3?  They  contended.  1.  That 
at  the  time  the  deed  from  <>gte  and  wife  to  Jioshy  v,  .is 
executed,  the  grantors  did  not  reside  in  the  count  v  «.f 
Prince-  George's,  and.  therefore,  thai  derd  did  not  trans- 
fer the  estate  thereby  intended  to  be  coinncd.  to  the  gran. 
tee.  They  referred  to  the  acts  of  1715,  ch.  47,  s.  8,  9; 
November  1766,  eh.  14,  «.  2,  3,  July  1729,  cfi.  8  s.  5; 
1793,  ch.  53.  a.  7,  22;  and  1796,  ch  43,  s.  14.  ( 
-Art.  %,  16,  42.  The  act  of  17VJ,  ch  50,  *.  11,  12.  Jofmt 


OF  MARYLAND.  380 

Hid.  tit.  Reside — Residence — Resident,  and  the  several 
examples.  Buyer's  Did.  tit.  Reside  r.  Cunn.  JJict.iit.  Re- 
sidence. Jacob's  L.  I),  tit.  Rexiance — Rexianf. 

2.  They  also  contended,  that  the  certificate  made  on  the 
deed  by  the  clerk  of"  Prince  George's  county  court  does 
not  pursue  the  words  of  the  act  of  assembly  of  November 
1760,  ch.  14,  s.  5,  he  having  used  the  words  ''legally  au- 
thorised aad  assigned,"  instead  of  the  words  of  the  act» 
"t/w/y  commissioned  and  sworn."  That  intendment  could 
not  be  admitted  to  supply  the  omission  of  the  words  used 
in  the  lawj  and  that  if  intendment  could  be  admitted,  there 
was  not  sufficient  matter  stated  iu  the  certificate  to  show 
that  the  justices  hud  been  sworn.  They  referred  to  the  se- 
veral decisions  made  by  this  court  as  to  the  acknowledg- 
ments of  deeds  by  femes  covert  grantors,  also  the  acts  of 
February  1777,  c/i.  5,  4'  '796,  ch.  45,  s.  17',  and  Dyson  vs. 
West,  1  llarr.  ty  Johns.  567. 

Martin,  ('Attorney  General,}  and  Mason,  in  reply  to  the 
second  point,  referred  to  the  acts  of  1785,  ch.  9,  s.  8,  9, 
and  1797,  ch.  103.  Griffith's  Lt.isee  v  Ridgely,  £  Harr. 
%•  Mullen.  418;  and  &tm  4*  Let's  Lessee  vs.  Deakins, 
Ibid  46. 

CHASE.  Ch.  J.  The  court  are  of  opinion,  that  this  case 
5s  not  distinguishable  from  the  case  of  Sim  *>•  Lee's  lessee  vs 
JDealtins,  and  that  the  principles  of  that  case  must  govern. 
Jn  that  case  Warder,  by  coming  into  Maryland,  acquired 
a  temporary  residence  sufficient,  under  the  act  of  its.si-m- 
bly,  for  the  purpose  of  executing  and  acknowledging  the 
deed.  That  while  in  Maryland  he  oy/ed  temporary  alle- 
giance, and  during  his  residence  was  subject  to  the  iaws. 

By  the  law  of  nations  a  stranger  is  subject  to,  and  has 
the  protection  of  the  laws  of  the  country  or  state  into  which 
he  may  go.  But  the  court  are  of  opinion,  that  the  terra 
residence  is  a  general  term  merely  to  express  the  abutle  of 
the  person. 

The  court  are  of  opinion,  that  if  the  jury  should  find 
that  Benjamin  Ogle^s  principal  residence  was  in  Jinnopo- 
lis,  in  Annc-Aruiidd  county;  that  he  voted,  served  on  ju- 
ries, and  was  enrolled  in  the  militia  in  that  county,  and  no 
other  county;  and  that  from  the  year  1774  to  the  year 
1780,  he  with  his  family  temporarily  resided  at  lielle  Air, 
m  Frince- George's  cuuntj,  during  the  summer  and  au- 


SCO  CASF>*  IN  TIIK  OiUtT  OF  AIMT.  ' 

,  of  the  said  years,  sometimes  fur  ;i  longer  ami 

;  and  vhould  also  find  that  he  \va» 

vi'li  hi*  wit*1  ai  hi>  i  <nuitv  on 

'th  nl  June  17",  the  lime  of  (hi-  execution  of  tlie 
deod  to  Ht'*lfi/i  although  they  Miould  find  that  hv,  \\iih  his 
vile,  mi  the  .--aid  ia^t  mentioned  i!:iy,  stopped  ;\\J>>/;' 

bi&  temporary  i.aint\,  for  a 

short  time   inily,  on   their    way  to   or  from    II  (at  /«'<<< ;•,  in 

(iitintv,  aiiil  (Itirit;^  s"th  Cdiitiiiin; 

ltd  and  aikt.ov.  ii  il.r.l  the  deed  to  /tos/r/;  and  that   ^/?, 
virh  his  \vife,  iiiunediatcly  al'ler  th?  cxetuti«:ii  and  ac  kno\\  - 
..-tit  i  fthe  deed,  left  /.'»//•  ./';/•,  .irid  did  not  -o  thi«he»- 
v.  j'li  hi>  f.uiiilv  toitiitain  jluiin^a  \>m\  oft1  :  and 

autumn,  aicoidin^  t<»  hi.-  ?aid  ttistuin,  until  -everal  • 
after  the  time  of  executing  the  deed;   that  then  the  deed  is 
pmd  and  valid  in  lau  to  |..i^s  and  tiaiotcr  all  the  iuteieat 
of  Off.'c  in  the  land  to  lhs!> 

'\  lie  court  du  not  say,  that  a  person  ^ninu  from  (.ne  conn- 
<y  to  another  can  acknowledge  a  deed  for  lami- 
a  diflerent  county;  but  that  a  temporary  residence,  ami  not 
a  nitre  transitory  residence,  is  sufficient  for  that  pun 

The  clei  k  of  the  countj  court  is  a  person  intrusted  to  make 
*lie  certificate,  that  the  persons,   before  whom  the  acktiiju- 
h'd^ment  of  t!ie  deed  was  made,  were  justices  of  the  |  "ace 
of  the  county.      He  had  a  knowledge   of  the  facts  u  here- 
upon to  ground  his  certificate,  which  is  to  authorise  tl 
carding  the  deed.     The  court  think  a  substantial   compli- 
ance with  the  directions  of  the  act  i>-  all  that  is    requisite; 
and  the  court  consider  the  words  used  in  the  c^riiih  ate  are 
vuids  of  that  import.     The  words  li gaily  uulhvri&cd,  are 
of  the  same  import  as  "duly  co?;,////i.W<<,,«/  and  M- 
The  coiiit  collider  (hat    tl»e  justices  could    not  be   l« 
tiulfiuriacd  unless  t'uey  had  been  coniini.tfioncd  undsu-orn. 
'1  'lie  court  aie  of  opinion,  that  the  certificate  o(  the  clerk 
Q(  Prince-George*!    county    court,  endorsed    ou  the   deed 
from  licujamin   Oglt  and  u.ift-    to  Jumes  Motley,    L- 
and  suHicient  in  law  to  warrant  the  enrolling  the  deed  by 
the  clerk  (  !  Hn/limore  county  court   among  die   lutid    re- 
cord?. «,f  that  county.    The  defendant  excepted. 

4.  7  /   bill  of  exceptions.     The  defendant,    to 

make  title  to  the  lands  within  the   lines  from   firmer.,  &.c. 
•    plots  in   tlie   cause,  offered    evidence   to   prove  the 
plot*  and  explanations;  and  gave  in  evideu.ce  the  ctrtifi- 


OF  MARYLAND. 

cafes  and  pafenf*  (<t)  of  the  tracts  oflan<l  called  Culkn's  1SOO 
Lot  and  CuUoi't  Addition;  the  certificate  of  the  former 
tract  dated  the  17th  of  June  1683,  and  oftlie  latter  tract 
•luted  the  25th  of  September  1GS3;  and  also  gave  in  evi- 
dence the  certificate  and  patent  of  Hill's  Forest  before 
mentioned.  And  also  gave  in  evidence,  that  Ihe  whole  of 
the  land  contained  within  the  lines  on  the  plots  from  GO, 
shaded  blue,  to  red  7,  to  red  8,  to  red  9,  to  61,  and  witli 
the  fence  shaded  yellow  to  60,  was  in  the  actual  posses- 
sion,  enclosure  and  cultivation,  of  the  defendant,  and  those 
under  whom  he  claims,  claiming  the  whole  thereof  as  his 
and  their  property  for  the  space  of  fifteen  years,  and  that 
then  a  fence  was  made  from  red  7  to  X,  and  from  X  to  60, 
and  the  whole  of  the  land  included  in  the  fence  from  X  to 
red  7,  red  8,  red  9,  to  G! ,  to  60,  to  X,  was  continued  for  seven 
years  as  the  fence  and  the  inclosure  of  the  defendant,  claim- 
hi<;-  the  same  as  his  own  before  the  bringing  this  e- 
jectment.  In  this  case  the  testimony  was,  that  the  fence 
Irom  GO  to  52,  to  53,  and  so  on  to  60,  was  made  by  lite 
defendant,  and  those  under  whom  he  claims,  before 
the  year  1774,  and  continued  to  run  thus  until  the 
year  1733,  when  the  fence  was  altered,  and  nin  from 
60  to  red  7,  8,  9,  black  61  to  GO;  that  this  last  fence 
from  red  7,  8,  9  to  61,  was  in  the  year  173-2  put  up  by 
those  under  whom  the  plaintiff  claims,  and  those  under 
>vhoiu  the  defendant  claims,  jointly;  that  in  the  latter  part 
of  the  year  1782,  or  beginning  of  the  year  1733,  the  plain- 
tiff, and  those  under  whom  he  claims,  put  up  the  fence 
running  from  red  7  to  X,  as  a  fence  belonging  to  Hill's 
Forest,  and  the  owners  thereof;  that  immediately  after, 
in  the  year  1783,  the  defendant  removed  the  fence  from 

60  to  red  7,  and  run  the  same  from  GO  across  to  X,  and 
joined  the  same  to  the  fence  so  made  by  the   plaintiff  from 
red  7  to  X.     The  defendant  thereupon  prayed  the  opini.m 
of  the  court,  and  their  directions  to  the  jury,  that  if  they 
were  of  opinion   from  the   evidence,  that   the  defendant, 
and  those  under  whom  he  claims,  have  held  by  enclosure 
and  cultivation  for  more  than  twenty  years,  the  iand  includ- 
ed  within  the  lines  from  GO  to  red  7,  and  red  8,  red  9,   to 

61  to  60,  claiming  the  same  as  his  own,  that   then   he  has 
title  to  the  same  by  adversary  possession,   although  bi-f:»re 
the  expiration  of  the  twenty  yours  the  fence  a;ul  enclosure 

faj  Neitlier  «f  the  tracts  were  patented. 


302  <    ^SES   IN   THE  ClH.'RT  OF    APPEALS 

IP.  ,o\i-d   fro. n    red    ~  to   X,   to   GO,  and   thereby  eft- 

:'.•(!  the  enclosure. 

CHVSK,   Ch.  J.     'Die  Court  refine  tn  give  the    direction 
prayed,   Ix-in^  of  opinion  that  if  the  jury   should  find   that 
the  plaintifl's  lessor,  under  the  direction  of  (he  court    al- 
ii.  hath  made  title  toalf  the  tract  of  land  railed. 
I  Jill's  Forest,  except  the  GOO   ar:  !    to  Nathaniel 

JtiiJi (tr, If.on ;  and  shouidf  also  find  that  the  land,  to  which 
the  defendant  claims  tide  by  adver-iry  [Hisses-ion,  in  man- 
nrr  herein  slated,  is  included  within  the  true  location  of 
J'iir.i  Forest,  that  in  such  case  the  defendant  has  no  title 
to  the  land  by  adver.-ui  v  po^r^ion.  h:r.  ir.^  abandoned  it 
by  removing  his  enclosures.  The  defendant  excepted. 

5.  The  third  biff  of exbcptioiu.  The  plainiifftomakMitle 
<o  the  land  claimed  by  him  in  this  action,  read  in  evidence 
to  the  jury  the  certificate  ami  patent  of  //*//'*  J'oresf.  and 
showed  a  title  to  the  land  in  the  le-sor  of  the  plaintiff,  un- 
der the  grantee  <»f  ihe  land;  and  to  prove  that  the  said  tract 
is  truly  located  on  the  plots  by  him  as  his  claim  and  pre- 
tensions, cave  in  evidence  the  plots,  ami  the  certificate  of 
a  tract  of  land  called  Thompson's  Choice,  surveyed  for 
James  Tlunnpson  on  the  12th  of  March  IG"'.),  in  virtue  uf 
a  warrant  for  550  acres,  granted  him  the  14lh  of  January 
lGr9,  and  :i!»t>  a  wan  an*  -ranted  him  the  24th  of  January 
l»-r(J.  for  250  ncres,  whereby  "was  laid  out  for  the  ^;iid 
Thompson  a  tract  of  land  called  Thompson''.*  f'nn'rr,  lyin^ 
in  Jii:l!i,,iore  ct.unty.  on  the  R'ul-e  of  (innjnt't-drr  \ 

.nini:  at  a  bounded  oak,  being  the  \vestcrrnost  bound s 
ul'a  tract  of  land  late  laid    out  for   Major  Seu'e'l   (o),  anil 
running  W  500  perches  to  a  bounded  oak    slundin^  In/  the 
great  ft  tils  *  and  running  N  from  the  SMS-!  oak  320  perches 
then  K  50!)  per'-h."-,    i!;--;i   with  a  straight  line  to  the  first 
hounded    tire,    containing    and    laid     out    f.ir    ! 
uf  land    more    or    Ics-."      And    ;il-o   ga^e    evidoiKe    to 
it  the   land    called    Tliomnfni"n    Choice  is  tru- 
i    by  him    on  tlie   plots.        Il«-  aUo    (.f{'.>i,-l    .-vi- 
e  to  prove  the  true  location  of  77«0.v        .'    f  twice  to  be 
fr-nri  ihi-  li-tti-r  (^  i>n  'h-  |.!n--.  .md  from  ihencr  to  ?{,  to  S, 

'o  Q.     The deTeodanl  UM& offered  evideno 

"te  true  loca'i'in  i.f  t!i;«    said  land  v\a-<  from  I.  f'icnce 
to  10,  to  n.  io  '..:.  to  I.     There   was  ug  evidence 
Coj  Called  Xcu-rf't  fancy. 


OF  MARYLAND.  393 

that  Thompson's  Choice  was  ever  run,  held  or  claimed,  by  1809 
any  person  interested  in  the  said  land,  as  running  from  its 
beginning  to  Gu/ipoivder  river,  except  so  far  as  relates  to 
the  field  at  the  figures  10  on  the  plots,  which  field  wsta 
laid  down  and  proved  by  the  plaintiff  as  an  ancient  pos- 
session under  the  title  of  "Thompson's  Choice.  'Die  de- 
fendant then  prayed  the  opinion  of  the  court,. and  their  di- 
rection to  the  jury,  that  inasmuch  as  no  evidence  has  been 
given  of  the  bounded  tree  called  for  by  the  certificate  of 
TJiompaon's  Choice,  at  the  end  of  its  first  line,  nor  of  the 
place  where  the  tree  stood,  the'  first  line  must,  according 
to,  and  by  virtue  of  the  expressions  in  the  certificate,  be 
fun  so  as  to  terminate  at  the  great  falls  of  Gunpowder  ri- 
ver, from  whence  the  remaining  courses  of  the  land  must  be 
run  according  to  the  courses  and  distances  expressed  in 
the  certificate  thereof. 

CHASE,  Ch.  3.  The  court  refuse  to  give  the  direction 
as  prayed.  The  court  are  of  opinion,  and  so  direct  the 
jury,  that  the  expressions  of  the  certificate  of  Thompson'' s 
Choice  t  as  to  the  termination  of  the  first  line  thereof,  do 
not  operate  to  bind  that  line  to  terminate  at  the  great  falls^ 
although  no  evidence  be  given  of  the  tree  or  of  the  place 
where  it  stood.  The  defendant  excepted. 

6.  The  defendant  offered  in  evidence  the  declarations 
6f  Col.  Young,  deceased,  then  seized  of  SeweWs  Fancy, 
to  prove  the  end  of  the  first  line  of  that  tract,  which  is 
the  beginning  of  Thompson's  Choice  located  by  the  defen- 
dant. 

CHA.SE,  Ch.  J.  The  court  reject  the  declarations  of- 
fered in  evidence,  Sewell's  fancy  not  being  located  on  the 
plots;  and  although  the  second  line  of  that  tract  runs  cflf 
from  Thompson's  Choice,  yet  non  conslat  that  Young  was 
not  attempting  to  carry  back  the  first  boundary  or  begin- 
ning of  SeweWs  Fancy,  or  thus  interested. 

Verdict.  "The  jury  find  for  the  plaintiff,  and  say  that 
the  true  location  of  Hill's  Forest  begins  at  T,  and  runs  to 
tJ,  thence  to  V,  thence  to  \V,  thence  home  to  T.  They 
further  say  the  true  location  of  Cullen's  Lot  begins  at  A* 
and  runs  to  B,  thence  with  the  manor  line  to  C,  thence  to 
j,  thence  home  to  A.  That  Cullerfs  Addition  begins  at 
C,  standing  on  the  manor  line,  then,  runs  to  D,  to  G,  to 
VOL.  n.  50 


394 


CASES  IX  THE  COURT  OF  APPEALS 

II,  thence  home  to  C;  anil  lastly,  they  find  for  the  plaintiff 

all  the  lands  called  //»'//' ••>  /  ;.bo\r  !i.<  ated,  which 


»'•'  lii'<  clear  of  the    lands    called   ('uHcii's    Lot,   and  C'nlltn't 

/i/ion,  as  above  located,  and  which  lies  10  the  eastward 
of  the  said  division   line  between  the  plaintiff"*  lrs»i,r  and 
Joseph  Sice,    from  red  II  to  red  A  cor.tinued.   until   it   in- 
tersects the  out    line  of  Hill's    /'errs/   ;is;ibi,\e   located.*' 
Judgmrnt.     That  the  plaintiff  recover   ;IU.,:M>I   the,  defen- 
dant "his  term  yet  to  come  and  unexpircd  «if.  in  and  unto, 
all   that  part  of  the  tract  of  land  called    /////'*  F«r<*L 
tuate  in  Hallimore  county  aforesaid,  located  upon  the  plot* 
returned  in  this  cause,  beginnin;;  at  the  letter  T,  and  run- 
ning to  U,  thence  to  V,  thenre  to  W,  and  thence  home  to 
T,  which  lies  clear  of  the  land  culled  Cut'cn's  fat,  also  lo- 
cated upon   the  said   plots,  beginning  at  A  and  running  te 
B,  thence  with  the  manor  line  to  C,  thence  to  I,  and  thence 
liome  to  A,  and   which  lies  also  clear  of  the  land  called 
Cullen's  Addition^  also  located  on  the  said  ploU,  l>.  Binning 
at  C,  standing  on  the  manor  line,  then  running  to  I),  then 
toG,  then  to  H,  and  thence  home  to  C,  and  also  which  lie* 
to  the  eastward  of  the  division  line  between  James  (lit- 
lings,  the  lessor  of  the  plaintiff,  and  Joseph  Slee.  from  red 
B  to  red  A  continued,   until  it  intersects  the  out  line  of  the 
Said  land  called  Hiirs  Fore,st  as  above  located,  so  as  afore- 
said by    the  jurors  aforesaid  found,"  &c.     On  this  judg- 
ment the  defendant  brought  a  writ  of  error  returnable  to 
this  court 

The  cause  was  argued  at  the  last  term,  before  BCCHA- 
KAX,  NICHOLSON,  and  GANTT,  J. 

Key,  Harper,  and  Johnson  (Attorney-General,)  for  the 
Plaintiff  in  error,  in  arguing  the  points  which  arose  under 
the  first  bill  of  exceptions,  referred  to  the  same  authorities 
which  were  cited  on  the  part  of  their  client  in  the  general 
court. 

On  the  second  bill  of  exceptions,  they  stated  that  the 
principle  established  by  the  general  court,  in  their  opinion 
given  in  this  bill  of  etceptions  was,  that  if  a  man  has  a 
parcel  of  land  under  inclosurc  for  15  years,  and  then  en- 
lar^i's  the  parcel,  and  holds  the  whole  by  inclosure  for 
seven  yearn,  he  did  not  acquire  a  title  in  the  first  par- 
cel by  20  years  possession  by  inclosure.  In  opposition  to 


OF  MARYLAND,  899 

•which  they  cited  Russell's,  Lessee  vs.  Baker,  1  Harr.  fy       1809. 
John?.  Ti. 

On  the  third  bill  of  exceptions  they  cited  Howard  vs. 
Moale,  el  al.  Lessee,  (ante,  269,  270.) 

They  objected  to  the  verdict  and  judgment  on  two 
grounds — I.  For  uncertainty;  and  2.  For  excess  over  and 
above  the  demand — the  verdict  and  judgment  being  for 
more  land  than  was  claimed  in  the  action.  They  cited 
2  Buc.  Ab.  tit.  Damages,  (D.  2.)  Ibid  tit.  Error,  (K.  6.) 
Crumpton  vs.  Sn^itlt.  Yelv.  5.  1  Bulst.  49.  Clements  vs. 
Waller,  4  Burr  2156.  Cumingvs.  Sibly<  7foW2490.  Par- 
for  vs.  Harris,  1  Salic.  I62j  and  Philips  vs.  Bury,  1  /,</. 
Hayni.  6. 

Martin  and  71.  Buchanan,  for  the  Defendant  in  error, 
in  their  argument  on  the  first  bill  of  exceptions,  relied  upon 
the  authorities  cited  on  the  part  of  the  plaintiff' in  the  court 
below. 

On  the  points  respecting  the  verdict  and  judgment,  they 
cited  7  Buc.  M.  tit.  Verdict,  (M.)  Co.  Litt.  227. a.  Trials 
Per  Pais.  298,  304.  Carter's  Rep.  80,  94.  Vin.Ab.  tit. 
Trial,  407,  pi.  29.  2  #o#.  wft>.  tit.  TViw/,  707,  pi.  42. 
2  #«c.  Ab.  tit.  Ejectment,  (F.)  The  act  of  1805,  c/t.  65, 
9.  44.  1  Tldd's  Pr.  662,  663.  SuUivane  vs.  Seagrave, 
1  &m.  695.  2  #ac.  Ab.  tit.  Ejectment,  (D.  2.)  419,  420. 
Cot  ting  ham  vs.  King,  1  Burr.  6-29.  Conner  vs.  West,  5 
JBurr.  2673;  and  Howard  vs.  Mode,  et  al.  Lessee,  (ante  249.) 

THE  COURT,  at  this  term,  dissented  from  the  opinions 
of  the  General  Court  in  the  first  and  second  bills  of  ex- 
ceptions, and  concurred  with  that  in  the  third  bill  of  ex- 
ceptions. But  the  court  were  of  opinion,  that  the  certifi- 
cate of  the  clerk  of  Prince- George's  county  court  gave  am 
authority  to  the  clerk  of  Baltimore  county  court  to  record 
the  deed  from  Ogle  and  wife  to  Bosley,  mentioned  in  the 
first  bill  of  exceptions,  the  court  considering  the  words 
"legally  authorised  and  assigned?'  within  the  meaning  of 
the  act  of  November  1766,  ch.  14. 

JVDOIEXT  REVERSE*. 


CASE?  IN  THE  COURT  OF  APPEALS 

vs.  TAM.OR. 


ERROR  to  the  General  Court.    The  defendant  in  error 
brought  an  action  of  assiitiijisit,  upon  a  foreign  bill  oj  <..- 
T';'"r        i  .    .lra\vn    on  the    vJ.'nl    (,f  July    1799,    by  C'.  /:  C. 

rit)  nluuh,  .'met-  Bcsckl'.  (it    Jjtlltil)l<)>  '<  .   (ill./.    .  /.    -V    /'/.    //.    ltt.<i.<f,    of   /XM- 

\u»'rT'»  pt-rion  </o»,  in  fatourof  //»//.  />.  Jl<t«nnl(r,    lor   i;l.  ;<)  sterling 

•  >  Inl    111  •!  .     elm- 

i.cur  oi  a  IM.IU.  money,    and    in  vaule  00  d;i  v  «.    Blur  sii-ht.      Ihebill    was 

oflhe   IHVH-.    H|-  '  '     J 

in  .  ii  i  n  t  endorsed  bv  Masruder  to  tin-  defendant,  (now  plaintiff  in 

to       «!>..        l>,  111.1  It,  >  » 

errorj  and  liv  him  endorsed  to  tin-  plaintiflT  below.     It  \\as 

••  HIT    Uiat 

*  ^"ituch""^  l'rtllostt't'  'or  nonac  ceptunce  on  the  1  4th  of  September  1T99| 
'  n  ih 


»rV  ibrIMii'e"tpur^  9  eneril'  issue  was  pleaded. 

r.'^lion'''"^'.'?  1-  Thcfiral  bill  of  exceptions.  The  plaintiff'  at  the 
i77g,^!.  ^I.MK-',:!  trial  at  May  term  1805,  to  j>rove  that  he  had  »iven  to  the 
KiUaUtrmpor.!'.V^e'L'n^aut  ('ue  no'ice  of  the  nonaci  -eptatice  ol  the  bill 
dciu^lufficitT.t'  of  exchange,  on  \\hich  tlie  >uit  was  brought,  ami  of  the  pro- 
',r,,,.Vi'."  test  for  sucli  nonacceptance,  ottered  in  exidriue  a  Uoposi- 
''w'hV'i'/IiViK.'.t  lion,  \\hic!u  to»ether  with  the  several  endoi>eimMUs  tliere- 

»<  *  u.oi  i»i-  ur  in- 

dtirriiM-ui  in  tiic  on.  and  CArtlOCIttea  thereto  annexed,  was  as  lollo\\>: 
b)»»umti.  .,.^>  fhiwrc.  3d  March  18U3.     During  ihe  a!)-fiue  of 

BC    ri-«it     lit    cri- 

*•"««•  Taylor,  bom  Jiallimorc*   1  received  Frttncit  movm'tkt- 

The  minu'ot   ol          * 

iiir  (..w.-niMKiui-ter  directed  to  him  in   November   1799.    which  lettei   was 

•  nutar)   |iulil.c  ni 

rre°Lll-'coTiri'iie{.'  dated  the  13th  of  September  1799,  containing  advice  of 
£r"LEt£S.,u«f  ^  Ft  BescU'a  bills,  23d  July  1799,  for  /x>30  and  £120 
I^tdVu,eha™i  sterling,  en  J.  A.  $•  D.  H.  liurktr^  London,  being  pro- 
ol"!  1,01*1  r)"!,  MI"'  tested  for  nonacceptance,  of  whichlduly  notified  James 
-il.il,"i.ro.«1t'.j'»  Rrydai  immed  iately.  In  the  month  of  February  18UO, 
.rvijnbi  x'iminediatcly  on  receipt  of  the  news  that  the  bills 


i.  i*q!Ti-imy  protested  for  nonpayment,    I  returned    in  the    brig   John 
'^'  o!"'!'.  fifirkwood,    from    London,   (which    a;.  '.ear-.    l»v    t'xincis 

p  .iiiititi',  mi.i  itl-    n  .      ,  P 

t>.f  bu.ni.  .»  **  *  Jsrou'ii  x  letter  oi  21st  November  1799.)     I  notified  James 

(JL..U  .(.»!,  anil  Miit 

ceiwniuy  tu,.|H.»-  Brijueii  thereof  bv  order  of  /;  iHi'tni  Taulor.  and  unmedi- 

*il,  hrlu-rrcl,  ui.il 

U.I.IP.^OOJ  m  it..-  ate!v  subsequent    I  heard   vat  :-.;;.-;    nuivi-i  tations    between 

IUWU,  1O    lH-»  |l»lt- 

o"rth«  '^.mhti  WI'ajn  Tuijlor  and  James  Jiryitrn  on  the  subject.     The 
«id«K«'t0m|!?!?«  second  set    woich  //  .  Taylor  wrote    for    to     jj  ,,/,  a^ 

^  ,*u^rt^"  80on  as  'l  wa>  !>«licved  the  John  Jirirk>r<>«t'i  \-.a>  lost,    ar- 
uin^r  °f  UC  rived  a(  Ballimort  in  September   1800,  enclosed  in  Fron- 
'?,"  '.'^um  »"  "*  Browne'  v  letter  of  ii3th  June    1800,  while   W.  7>M//of 
waa  out  of  town,  I  was  then  his  agent  and  in  town.    In.me- 
diately  on  receipt  of  the  bills,  I  called  at  Jumes  I 
uut  'I'd  not  find  him;  I  called  again  very  shortly  afterv 
itons  L          ftnj  ,icmani|cj  paynient  for  the  said  bills  of  the  said  . 

Itrydin,  from  wliom  I  could  get  no  satisfaction.    Iu  con- 


OF  MARYLAND.  397 

firmation  of  the  loss  of  the  John  lirickwood,  J  have  ex-  1609 
amiried  the  journals  of  the  Marine  Insurance  office  of  this 
city,  and  find  the  following  entry  under  date  of  the  9th 
Dei-ember  1800:  **The  Marine  Insurance  Office,  Dr.  to 
D  Stewart  4*  Sons.  For  total  loss  on  brig  John  Brick- 
wood,  insured  the  Ipth  of  January  last,  on  policy  No.  504, 
she  having  sailed  from  the  Downs  the  10th  December 
1799,  and  no  account  of  her  since — it  is  concluded  she 
has  foundered." 

William  O.  Payne. 

Sworn  to  tje fore  me,  by  Jfilliam  Osborn  Payne,  on 
Thursday  the  3d  of  March  1803,  at  4  o'clock  in  the  after- 
Boon,  at  my  office  in  the  city  of  Baltimore. 

Owen  Dorsey. 

To  James  liryden.  Take  notice,  that  I  shall  attend 
at  the  office  of  Given  Dorsey,  Esquire,  in  the  city  of  Bal- 
limore,  on  the  third  day  of  March  next,  at  the  hour  of 
four  o'clock  post  meridiem,  to  take  the  deposition  of  Wil- 
li(un  O.  Payne,  to  be  read  in  evidence  in  two  suits  brought 
by  me  against  you  in  the  general  court  for  the  Western 
Shore  of  Maryland. 

Wm.  Taylor. 

February  8th,  1803. 

Between   the  hours  of  twelve  and  ope  o'clock  P.  M. 
on  Wednesday  the   9th  of  February  1803,  I  delivered  to 
James  Bryden,  at  his  dwelling  in  Light-street,  Baltimore^ 
a  true  copy  of  the  within  notice. 

If  W.    T.  ZfKUfc 

Sworn  to  before  me  the  ScJ  March  1803. 

Owen  Dorsey. 

Received  to  be  recorded,  the  19tji  day  of  May  1S04, 
Same  day  recorded  and  examined. 

Wm.  Gibson,  Clk." 

The  whole  was  certified  under  seal  of  office  by  the  clerk 
of  Baltimore  county  court.  The  plaintiff  also  gave  m 
evidence,  that  IV.  O.  Payne,  in  the  deposition  mentioned, 
•was  dead.  The  defendant  objected  to  the  reading  of  the 
deposition  in  evidence. 

CHASE,  Ch.  J.  The  court  accede  to  the  principle  that 
special  authorities  must  be  strictly  pursued.  But  they  are 
of  opinion,  that  it  appears  upon  the  face  of  the  deposition 
that  it  has  been  properly  taken. 


SC8  CA?KS  IN  THE  COURT  OF  APPEALS 

The  court  an-  of  opinion,  that  the  art  of  assembly  of 
July  1779,  cA.  ,!,  '-sin  act  r.ittifili.\!tin^  u  uwde  to 

"'«'f  /••>'.'  •!••••-  ri'M  require    an    enVient    re-i 

<!fMce,  Mich  as   would    make  a  person   a   d.'iniul,   qualify 
him  to  vote  or  to  be  capable  of  holding  an  oftice;  but  a 
temporary  or  transient   residence  is  sufficient;  arid   it  ap- 
-    to  the   court,    that    the    requisites  of  the  said  act  of 

My  has  bvrti  complied  with. 

Tin-  witne-1  IK  in.;  in  the  county  at  the  time  the  deposi- 
tion is  taken,    is  alone   TIM  i-s-.-iiy;  unless   it  were   so,    no 
:  but  ;i  judge  of  the  general   court   would   be  com- 
petent to  take  the  testimony  of  transitory  \\itm- 

The  twenty  days  notice  is  not  only   for  the  purpi 
giving  the   opposite    party  time  to  appear,  but  to  inquire 
into  the  character  of  the  witness. 

The  act  of  assembly  does  not  require  the  fact  of  resi- 
dence to  be  put  upon  record.  The  defendant  excepted. 

2.   The  defendant  objected  to  the  reac'ing  that   part  of 
the  deposition   which    slates  that  the  deponent,  a-  rloik  <>i 
the  plaintiff',  received  letters  directed  to  the  plaintiff  stating 
;  ittest,  in  consequence  of  which  he  gave  notice  to  the 
defendant  as  indorscr  of  the  bill  of  exchange. 

(!H\ST,  Ch.  J.  That  part  of  the  deposition  is  only  «r»- 
ductrncnt — Let  it  be  read. 

f>.  The  second  bill  of  cxcrjtliona.  The  plaintiff,  to  prove 
that  the  bill  of  exchange  in  the  declaration  mentioned  \\as 
duly  protested  for  nonacceptance.  offered  in  evidence  a  pa- 
per purporting  to  be  an  extract  under  notarial  seal  fiom 
the  books  of  she  notary  by  whom  the  said  protest  wa>  -up- 
posed  to  luive  been  made:  "Extract  from  the  protest  book 
marked  f,  fol.  n  the  2d«»f  June  179H,  and  ended 

the  8ii»  of  November  1709,   formerly   belonging  to  / 
(Juilioiviruit,    late   of  /'  /  ,7/////.  London,  notary 

public,  deceased,  and  now  in  the  |  n  of  his  succes- 

sor, JJciijuiiiin  JVta/o/J,  of  the  saim-  p!;ne,  notary  public. 

BallimQre,  July  C3d,  i: 
Exchange  for  £-250  0  0  sterling. 

•  y  (lays  at'tcr  sight,  this  my  6rst  of  exchange,  ray  to 

,Vr,    IM|.    or  order,  tl.e  sum  i.l 

hiinilred  and  thirty  pounds  sterling,  value  icteived,  which 
place  to  account  /*.  &  IV.  as  advised  by 

C.  F.  C.  Lutkt. 


OF  MARYLAND.  399 

To  /.  Ji.  &  7).  //.  Ruckcr,  esq.  London,  endorsed,  Pay       1809. 
to  Mr.  James  Bryden)  or  order,  value  received. 

1;     f>.  Miigruikr, 
Jurnen  Jtrytlm. 

Pay  Messrs.  Emmott  &  Hroume,  or  Francis  Krowne*  or 
order  of  either,  value  with  Win.    Taylor* 

On  the  fourteenth  day  of  September  Anno  D/ti.  IT9I),  at 
the  request  ot  Mr.  Francis  Browne,  of  London,  merchant, 
1  David  GuiHonneau,  notary  public,  dwelling  in  London, 
duly  admitted  and  sworn,  went  with  the  original  bill  of  ex- 
change, whereof  the  aforegoing  is  a  copy,  to  the  house  of  J. 
Jl.  and  D.  II.  Rv.cker,  esqrs.  on  whom  the  same  is  drawn, 
•where  having  exhibited  the  said  bill  to  a  man  servant  be- 
longing thereto,  I  demanded  acceptance  thereof,  whereunto 
he  answered  that  the  said  ,7.  Jl.  &.  D.  II.  Ruckcr,  were  nut 
within,  and  had  not  left  any  orders  fur  acceptance  of  the 
said  bill.  Whereupon,  I,  the  said  notary,  at  the  request 
aforesaid,  have  protested  against  the  drawer  of  the  said  bill, 
and  all  others  concerned,  for  exchange,  re-exchange,  and 
all  costs,  damages  and  interest,  suffered  and  to  be  suffer* 
ed  for  want  of  acceptance  of  the  said  bill  of  exchange. 
Thus  done  and  protested  in  London  aforesaid,  in  the  pre- 
sence of  John  Dcnton  and  Philip  Lamendin,  witnesses.  In 
teslimonium  verifalls. 

(Seal.)  l)av.  Gvi'lonneau,  Not.  Pub. 

Faithfully  extracted  by  me,  this  twenty-eighth  day  of 
July,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  four. 

tn  Testimonwm  Verifalis, 

(L.  S.)  Benjamin  Newton,  Not.  Pub." 

The  defendant  objected  to  the  reading  of  this  paper  ia 
evidence. 

CHASB,  Ch.  J.  The  court  are  of  opinion,  that  the  mi- 
nutes of  the  proceedings  of  a  notary  public  are  to  be  con- 
sidered as  records  under  the  curtesy  of  nations;  and  that 
a  copy,  under  the  hand  and  notarial  sea!  of  the  notary,  is 
sufficient  evidence  of  the  protest  of  a  foreign  bill  of  ex- 
change for  nonacceptancc. 

If  none  but  the  original  would  be  evidence,  what  a  si- 
tuation would  the  party  be  in  where  there  are  different 
endorsors  in  different  countries?  Tn  such  cases  copies  must 
be  sent,  and  they  are  always  received  aa  evidence.  The 
defendant  cxcepted 


400  CASKS  IN  THE  COLTRT  OF  A!'"!-:  VL3 

1B09  4.    11\t   third   bill   of  f.cc ejilions.      The    defendant. 

prove  that  the  plaintiff  at -the  time  of  the  diauinu.  and  i>n- 
doi-Min*  the  bill  of  exchange  mentioned  in  the  declaration, 
was  in  partnership  in  trade  with  a  certain  John  Titylor, 
under  the  firm  of  Ifllfitnn  Taylor,  and  that  John  Taylor 
vas  n  dormant  partner  in  the  said  house  of  ll'illiam  Tay- 
lor, at  the  time  of  such  drawing  and  cndursfineiils. 
e\idem-e  that  John  Taylor  was  at  tliut  time,  in  /itiflitnorr, 
where  the  business  of  the  house  of  William  Taylor  was 
carried  on,  and  was  frequently  seen  in  the  counting  li.m«o 
of  JTUliam  Tat/for,  transacting  b;i«ine«s,  receiving  appli- 
cations, and  giving  answers  as  a  princi|>al  in  tlie  btt.sinrv-i, 
and  was  generally  supposed,  believed  and  understood,  in 
Baltimof€i  to  be  n  partner  in  the  house  of  Jf-'i/fiam  Taylor. 
Audit  also  appeared  in  evidence,  that  John  Taylor,  for 
several  years  before  the  drawing  and  indorsement  of  the 
said  bill  of  exchange,  resided  in  London,  and  there  cairieil 
on  business  under  the  firm  of  John  Taylor  •$•  Co.  and  that 
at  the  times  of  the  drawing  and  endorsement  of  the  bill, 
John  Taylor  had  recently  come  from  London  to  this  state, 
in  bad  health,  and  did  not  remain  in  this  country  longer 
than  12  or  18  months,  when  he  returned  to  London;  and 
that  during  a  part  of  his  stay  in  this  state,  and  at  the  times 
of  the  drawing  and  endorsement  of  the  bill,  he  resided  at 
a  country  seat  rented  by  him  in  the  neighbourhood  of 
Baltimore;  and  that  William  Taylor  did  then,  and  for  a 
long  time  before  and  afterwards,  carry  on  trade  and  busi- 
ness in  Baltimore  in  his  own  name  alone,  and  not  in  the 
name  of  Wit  Hum  Taylor,  fy  Co.  or  in  the  names  of  Wil- 
liam and  John  Taylor.  The  defendant  then  prayed  the 
opinion  of  the  court,  and  their  direction  to  the  jury,  that 
if  they  shall  be  of  opinion  from  the  evidence  so  offered, 
that  John  Taylor  was  at  the  times  aforesaid  a  partner  in 
the  house  of  William  Taylor,  that  the  plaintiff  is  not  tn+ 
titled  to  recover  in  this  action. 

'  V-K,  Ch.  J.  The  Court  are  of  opinion,  that  the 
evidence  offered  is  not  sulm  'n-nf  to  prove  that./o/w  Taylor 
was  a  partner  of  the  house  of  Jl'illiam  T<n/!ur.  and  there- 
fore they  refuse  to  give  the  direction  prayed.  The  defen- 
dant excepted. 

5.  A  question  aro*e  as  to  the  value  of  the  sura  of  mo- 
ney mentioned,  in  the  bill  of  exchange,  whether  such  value 


OF  MARYLAND.  401 

tinder  the  act  of  1785,  ch.  33,  slinulil  be  at  the  time  of  the        1809. 
protest  or  at  (lie  time  of  the  notice?     It  was  stated  by  the 
attorney  jreneral,  that  tin*  circuit  court   had  decided,    that 
the  plaintiff  ini^lit  recover  as  much   money  as   would  pur- 
chase a  new  bill  at  the  time  of  the  verdict. 

THE  COURT  said,  that  it  had  been  often  decided  in  this 
court,  under  the  act  of  1785,  ch:  38,  that  the  plaintiff' ia 
to  recover  as  much  money  as  will  purchase  a  similar  bill 
at  the  time  of  the  verdict. 

The  verdict  and  judgment  bein§  for  the  plaintiff,  the 
defendant  brought  the  present  writ  of  error* 

The  case  was  argued  before  POLK,  BUCHANAN,  NICHOL- 
SON, and  KAIU.K,  J. 

Harper  and  Purviance,  for  the  Plaintiff  in  error,  stated 
that  two  grounds  of  objection  wore  presented  by  the 
Jlr.it  bill  of  exceptions — 1.  That  it  di,l  not  appear  that 
Payne,  the  witness,  was  a  resident  of  the  county  where 
his  deposition  was  taken,  sa  as  to  give  it  effect  under  the 
act  of  July  1779,  ch.  8;  and  2.  That  it  did  not  appear 
that  Oiven  Dursey,  before  whom  the  deposition  was  taken, 
v.as  a  person  authorised  by  law  to  take  it. 

On  the  first  point,  they  referred  to  the  act  of  July  1779, 
ch.  8,  s.  1,  2,  7,  and  the  decisions  of  this  court  upon  the 
acknowledgments  of  deeds  by  femes  covert  grantors.  Also 
£mms  vs.  Borvisr,  2  ILtrr.  $•  M-flen.  377.  The  acts  of 
1729,  ch.  8,  s.  5;  17G3,  ch.  13,  s.  2;  1796,  eh.  43,  s.  14. 
Comt.  Art.  2,  15,-  and  Stevenson  vs.  Myers,  1  Harr.  Sf 
Johns.  102. 

On  the  second  point,  they  cited  Gordon  vs.  Hickman,  4 
flftrr.  fyM-Hen.  217. 

On  the  second  bill  of  exceptions,  they  contended,  that 
the  copy  of  the  notarial  certificate  of  the  protest  of  the  bill 
of  exchange,  ou^ht  not  to  have  been  received  in  evidence, 
until  a  foundation  had  been  laid  for  its  reception,  by  prov- 
ing that  the  original  had  been  lost,  &c.  They  cited  Git- 
tint's  Lewc.  vs.  hall,  I  Harr.  $r  Johns.  16;  and  Gassaway 
vs.  Dorset},  4  Harr.  §•  APflen.-lQS. 

On  the  third  bill  of  exceptions,  they  contended,  that  the 
eTi.Iimce  offered  was  competent  for  the  jury  fairly  to  infer 
that,  there  was  a  partnership. 

vor.    «  51 


403  v   iSES  IN  THE  ('(HUT  OF  AP?KAI.S 

ISi  Martin,  for  Hie  DiTrndant  in  error.  on  tl,<>  /V.s/  bill  ofe.x- 

C.rp<:  ;-  to  tin1  firnt  fioiat,  t  LtSift 

-.  <S-  M-  II»\.  -ir>.     ft'//;, 

//.-///,  1  //«rr.  .V  |i      The  acts  of  July  17T9,  c/i.  8, 

and  July  17  :i.  efc  14. 

On  the  second  poiiif.   !.  I  to  Carroll  d  nl    I 

r*.  \ortrnntl,  4  /furr.  k  .I/'  l/cn.  '287;  ami  /.'./  },(irte  liuil- 
vuin  iV  Swurtirnuti  4  Crunch,  7.1. 

On  the  Sfcow/bill  of  exceptions,  he  cited    IValrond  vs. 
J'un  Moses,  8  iVoJ. 


THE  Co  CUT  were  of  opinion,  that  there  was  nn  error  in 
the  opinions  expressed  by  Hie  general  court  in  the  seveihl 
bills  of  exceptions. 

JUDGMENT  AFFIRMED. 


JUNK.  DORSET  vs.  GASSAWAY. 

APPF.AL  from  (he  General  Court.     The   present  was  aa 
"'" T"'rH*Vf.im  action  of  replevin,  brought  by  the  appellee   for  two  ne»;r» 

•i  a    form1  r   tti*l 

between  the  tame  parties  in  the  tame  rrfion.  nn-  not  evidence  lit  n  nrw  trial  of  thr  inmp  cause 

If  sla»rt  remain  in  «h»-  |>oi  i  ««MII  i.f  th-  i«  n  lur.    tfit-liill    i-l'vi!1    TI'|I>'    '  ,m!    «li,il,p< 

llitr  renixim-  '  in  hi'  po»i«  *«><m.  i»  a  msittrr  of  fuel  f  >|.  iht  jur\  ;  if  ll  r>  liinl  ilirv  »•  r-   ni't  in  i 
mnon,  th*>  txll  of  ia'r  i»  n«.i  r<  qiiin-d  iu  be  recnrdrd;   miii  a  >-.  i.nt  i  i  uli  ntc,   Hlihou^h  it  «m  nrnid* 
ed.  unl«->'  the  t-xcciition  ol'  jl  is  in  l^^•(l. 

To  my  the  foundation  tor  proving  an  original  deed  lo»l,  the  evidence  must  be  RIH-H   to  ilie  court. 
(nfte) 

Proo*  Sein?  rnnde  «f  the  li«»  of  sn  otitrinal  il.-<'(l  nf  nuirtrntT*  of  land  and  s'arri,  datri!  m  17ft3.  the 
inivt/tni/i  "vat  admltt<il  in  lit  rmd  m  U-Riil  rviil<  nt-c,  Qjlinnrli  file  «|I-<H|  wa>  not  n-vuijcd  in  tbe  nino- 
-'itx-d  hv  la»,  »o  far  .M  i-f-pei-n-il  tin-  sl«>,  »  in  (li>|""f 

Where  a  dtrd  i«  lo«t.  or  i»>t  in  the  pc«<-r»r  tlit  party  to  (.rudnri-  it,  it  is  only  nrce«arv  to  show  an 
•1  <-»|iy.  »r  tiniv,   th.    i  ,.TH.  iit.ot  tin-  'lifil 

Certain  Oi-l»  r<  fmeil  To  IK-  ailmitin)  in  rvidt-ncr    ">    l-mvr.   thnt  n  jx-rv  (iitain 

•lam,  Knd  liad  made  a  Tollman,  ri"  «.f  ill  m.  in  vi  r  \>nnl  HH\  ,  t-n- (li-   sl:i\.» 

C<  rtnin  art«  and  drc  an,1  '•  li  mlmii.  »iil>«.  •)>!<  TH   tn  I  .  sln\i-»    foi  v. ' 

•clion  ot    r>  pi<  uu  was  lire  light,  and  I  tl.  11.;,  nrx-  not  c«  iili-nc-c  lodtTiat  i!:i 

{itniniilT 

An  affid'tit  ma  !r  hy  a  debtor,  and  pnrrurnt  into  ihr  ireainry   nud'T  the  trniln    law ,  adnnii- d    in 
..  n  w.«  iiiufliicd,  and  ini.il  ..nry 

Pri^vdmi^.  in  fli^nrrry  in  di  r  sn  nm.!\i-nt  Inw.  xr.-  nr.l  <-\  iili-n-i-  in  favour  -.|  th'    p< rtnn  who  had 
i.liinMH  d  in>-  '  •  IH»  ,  to  prove  an  ackitou  !•  -d^iueiii  ai.d  adniiisii>ii   by    him  on  In.  u|iplii  a. 

lii'ii  i 

A  bill  in  (  ..'1   ihr  |-n.r<-.-i|intr«  ind  i'i-rr«-e  thrrron.  rnnnot  b<   ro:  d  in  evid-nce  in  aa 

uc'i'in  Se|we«-i.  I'i'V-  r,-n:  pTrm-»  trnm  iln»c  nxn-.i  il  in  <:•• 

An  an  •  ..,'•'•'••.  nt    do- 

•i  r' idi-iir.-       I'.iii    ill.-    ('•  i  l.irnm.i:«   4.1"  ill.     i'i  '.\  i.i'.nn 
f\ ^-i^  /«itt>e»«  may  rcrur  to  the  antwe?  to  refirth  h»  memory   ai  n>   tin-   dci -larauuiii  nmJe  to 

\->  'f»-n  m  "ill  V  ni  lii»  n»n  ia!c.    llr  r.iniMit  n-l  up  hi-    ilm-li<r(fo    undrr   an 

into  T  in  law. 

If »  i  •  '  ilirm, 

ttild  thru.  !•• 

«..n!il    i>-     to 

pun  lh'  ah»n  lit.  n«rrr«l<i,  .i(  ih»- 

'H-A-,  ami  In.  ; 

•  rit.  ••  ,1,  iiili-  to  tin-  »!.IM  >.  »i  I  •  MI   •    in     ..  w    :  i  i-i:.l-iii  .    :<ii(i  inn  In  i]i  I.  HI,    ln>   lonlruit 
%ii>.    ' 

ir  a  iM<t  i*  «.ur  on  m.irnrr.e»  and  on  op«  n  aeeount,  an-'  |»i '  ,  are  tutile  by  the   drbtnr, 

-  »ill  apjih  ih  li.  MI'II  ir:u- 

'i  hit  ditchir^i- i.:i'!i  i   iniii...%    nt  law,  ma)  be 

•        •  '  ,1  ,>,,,.  nn  ,),,.  n,0|  |. 

~  il.  «h<>    hud    nui  paid    for    it.  aix!  %  i 

Inar  .1  i»gc«  as  the)  Utiuk    Ute  (iliuutfu  juxlr    en- 

titled to,  ••  an  tf0f«MM  Cor  U.«  iujury  .u.umitl 


OF  MARYLAND.  403 

slaves,  James  and  Harry.  The  defendant,  'the  present  1809. 
appellant, )  pleaded  rion  apit  and  property.  General  repli- 
cation and  issues  joined.  There  had  been  a  trial  in  this 
case  in  the  general  court  at  October  term  1799,  and  judg- 
ment having  been  rendered  for  the  defendant,  the  plaintiff 
appealed  to  the  court  of  appeals,  where  the  judgment  was 
reversed,  and  a  jtrocedendo  awarded  for  a  new  trial.  See 
4  Harr.  fy  M'-Ken.  405, 

1.  The  defendant  at  the  new  trial  at  October  term  1805, 
ofl'ercd  in  evidence  to  the  court,  the  admissions  made  by 
the  plaintiff's  counsel  in  the  spt  rial  verdict  taken,  at  the 
former  trial   at  October  term  1799,  to  prove  the  existence 
of  the  mortgage  therein  stated, 

AJason,  tor  the  Plaintiff,  objected  to  this  being  done, 
and  cited  Aluhoncy  vs.  Aaliton,  4  Harr.  4-  APHen.  £95, 
322. 

CHASE,  Ch.  J.  Facts  are  often  admitted  and  stated  for 
the  purpose  only  of  bringing  a  particular  point  of  law  be- 
fore tlu-  court.  As  the  finding  of  the  jury,  in  the  special, 
veiciict,  was  on  the  admissions  of  counsel,  it  is  not  evi- 
dence to  prove  the  existence  of  the  mortgage. 

2.  The  defendant  oflered  iu  evidence  a  bill  of  sale,  for 
the  negroes  mentioned  in  the  declaration,  from  Clerke,  ad- 
ministrator of  liussell,  to  Edward  Dvrscy,  one  of  the  origi- 
nal defendants  in  this  action. 

Mason,  for  the  Plaintiff,  objected  to  the  bill  of  sale's  be- 
ing read,  unless  its  execution  was  proved. 

CHASE.  Ch.  J.  If  the  negroes  remained  in  the  possession 
of  the  vendor,  the  bill  of  sale  is  required  to  be  recorded; 
and  whether  the  negroes  remained  iu  the  possession  of  the 
vendor,  is  a  matter  of  fact  tor  the  jury;  and  if  they  find 
they  were  uot  in  possession  of  the  venJor,  then  the  bill  of 
sale  is  not  evidence,  although  it  has  been  recorded,  with- 
out proof  of  its  execution,  it  not,  in  such  case,  being  a  pa- 
per authorised  by  taw  to  be  recorded. 

3.  The  first  bill  of  exceptions^     The  plaintiff  offered  in 
evidence  that  the  defendant,  in   the  year  1782,  being  in 
possession  of  a  number  of  negroes,  sold  them  at  public  sale 
to  the  highest  bidder;  that  at  that  sale  Thomas  Gassaway, 
the  father  of  the  plaintiff,   purchased  negro  James  in  the 
declaration  menlioiicd,  and  negro  Rachel,  the  mother  of 


401  CAM>  IN  r.n:  rornT  or 

Jftirn/,  the  othrr  s-laNe  in  the  declaration  m«-ntiom 

n/  not    l>i  in-  thru  born,       i  !  ;.r.d  ./<  / 

then  de!i\<  i«:d    l>\  .  «!•<» 

!-,r!(l  :\lid  ]                     'i.eit',  tn-itl.u    v.  i";  i'\\;is 

to  his  son,  Ht  plainlifi,  imd  thru  cltlivr, 

!'    them  in    )'i:n,  v.ho    !.» M  :;i  •'.   pciRtet-sed    MTMI   until 
they  .  \\hen  they  were  tdkeu  frtiui 

bv  the  defendant,     'i'lu-v  u-t-ir   M>  i..'.  !  lime 

before  the  brin^ii:;-;  cf  thi-  su'n.  '1  l:o  j  !..'!:!iil  t!i»n  pnoed 
UM! /om««  JfeuteJA  herein  after  named,  «;--  iu  ih.' 

.    tiuMi  I'l-tiviiii  i'  i.'f    Muniluntl\\\  and  liurii::;  r':.r   %c.ir 
J77,'.      Tl'.e  (IdViidaiit  lln-n    cfl'cri'<I  evidiiicc   tu  i!.i  / 

(a),  by  (he    oath  of  Jiobf rt  Yi.viiy.  tl.nt  he  v:t-<  sen" 
past  the  agent  of"  i/(.  '/•,  ai;(I  (hat 

cf  a  !:••  ' 

by  the   defendant  to  Jtvsstll',  that  the 

in  the  vrar  ITi.n      That   lie  \\;><  nrl!  :n  r:rairi(e»l  \\itli  tl»c 
defendant  and  hi^  IiaJidwiitiii^,  ami  that  the  n:o, 
si^noil    by  the  defendant.     That    !.»•    does   not 
vhcthcr  the  mortjratre  was  acVnowledjred  I 

w    o  if    • 

M  j.i-.tice.     Thai  it  \vas  an  mi^'mal  |  aper.  at:d  t'-.at  to  the 
IT -l  of  his   recollection,  he    dclivcnd    it,  about    10  c.r  1'2 
years  a;jo,  to  James  Clcrkr,  then  the  r.'.liiiitiiitiatw  (.: 
««//,  who  had  died  before  that  time  in  (.*.  J'.     '\ 
ant  then  read   to  the   court  the  letters  of  adniiiiistrJraoa 
granted  to  James  Clerke  on  Ittt^dl's  estate,  dated  (U-  1  Itli 
of  August    1789.        He    further    proved   by    ]'< .1  ,:L\    that 
the   mortgage  purported  to    be   a  ecineyaiice  of  a   i.iiiuln'r 
of  negroes  byname  from   the  defendant  t«   /.  »'vr//,  and 
amongst  those  negroes  >\eie  t\\o,  to  wit,    .'  ,  (tifo. 

He  further  proved  to  the  court  by  the  trs:in  i  i;\  <  1  ( l.-nrlcs 
JJ\t!!;rr,  that  L'm>nrll  s-hipped  lar^e  fjiiar.tit:        ; 
fore  the  year  17G5,  to  the  defendant,  and  that  (  ' 
Inmn  \va>  t|u»  ajjent  of  Ititssftf.     That  he  v  '  t,  br- 

twt-en  t!se  yiMr-s  17COaiul  1'C.i,  when  GraJ cr.:c.  now  de- 
ceased, and  William  Ln.r,  now  deceased,  ai-d  tl.c  tit -lendant, 
were  together  in  the  -room  of  /.,".>•,  atv.hicii  time 

the  defendant  executed  -  >,f  <;f  «'iitin«:,  which 

Walker  witnessed,  and  that  he  never  <  other 

(a)  CKASK,  Ch.  J.  To  lay  the  foundation  for  proving  :. 
ginal  deed  is  lost,  the  evidence  nsua;  be  to  tlic  court. 


OF  MARYLAND.  405 

executed  by  (he  ik-fendaiM,  in  llie  pn-su:cp  of  himself  and  1809 
Z?/;r.  lie  furili*  i-  cllcrcd  in  evidence  to  the  court,  by 
J  t.?-T£-.  that  the  ukii'i.1  iiioi  •;_. '•.'..  I  ;i*.in  before  referred 
1o,  v,  as  i'.i'!iM'i  i'»l  by  him  to  (  /tr/.e,  about  tin1  year  1797,  lor 
the  purpose  (if  scuding  the  same  to  J'kiludffyliia,  to  h.y 
before  tiio  comn  tsHviure  there  in  session,  under  the 
treaty  with  C.rutt-ttriti.lii,  to  establish  the  claim  of  Ihis- 
.v  .••//.  lie-  further  ofiered  in  evidence  to  the  court,  by 
Edward  tialt.  that  (/(/Ac,  the  administiator  of  Kutsaill,  in 
a  convei-hJi'ion  witli  him  lately,  infonv.eil  him  that  all  the 
pni  «TS  deliM-rcd  to  hin;,  (:lcr!,c,  by  fitktrt  Y^i'.n^^  rc'.r.ting 
to  the  ci.'iim  cf  J.'n. tuctl  against  the  defetidaut,  were  by  him 
iliH-.  en-d  over  to  H'U/iam  Ccoke,  Enquire,  to  prosecute  his 
cliiiui  Ld'ore  tl.e  ci-n '.n.'^sioners  in  Philadelphia.  He  then 
read  intMidftice  to  (he  court  the  deposition  of  Jniiutm 
C'cchc,  K><jiiire,  taken  by  consent,  who  proved,  "that  some 
years  ago  he  was  applied  to  by  James  Clerke,  administrator 
cf  James  Isitssc'},  late  of  London,  merchant,  to  file  a  bill 
in  chancery  against  John  Horsey,  and  Lullicr  Martin^  Es- 
quire, and  others,  tlie  bargainees  of  certain  lands  which 
they  purchased  of  Dor.&cy,  and  which  he  had  previously 
mortgaged  to  Jiins^dl^  that  among  the  papers  delivered  to 
him  by  Clcrkc,  were  several  bonds  passed  by  Dorsey  to 
/I'WA.SC//,  but  tlie  deponent  cannot  recollect  whether  the  ori- 
ginal mortgage,  or  a  copy  of  it,  was  delivered  to  him.  That 
he  filed  the  bill  in  chancery,  and  while  the  suit  was  depend- 
ing, he  uas  applied  to  by  Edward  J)or.iey,  now  deceased, 
to  purchase  sundry  nepn.es,  also  included  in  the  mortgage, 
and  fitter  consulting  the  complainant,  this  deponent  agreed 
that  the  negroes  should  be  valued  by  disinteiested  persons, 
which  was  done,  and  he  sold  the  negroes  at  the  valuation  to 
£.  /Jersey,  and  received  from  him,  or  from  some  other  per- 
son on  his  behalf,  the  purchase  money  for  the  negroes,  and 
paid  ;hc  same  over  to  the  complainant.  That  it  being  af- 
terwards ascertained  that  John  Dorsey  had  not  the  legal  title 
to  tiie  lands,  or  to  some  material  part  of  them,  at  the  time  of 
executing  the  mortgage,  the  deponent  exhibited  a  claim  on 
b<half  of  Clerhe,  the  administrator,  to  the  commissioners  (hen 
sitting  at  Philadelphia  under  the  treaty  of  amity,  commerce, 
&c.  between  Great  Britain  and  America,  and  withdrew  all 
the  original  papers  which  he  had  lodged  in  the  court  in 
the  said  suit,  to  present  their,  together  with  a  nieinp- 
^ial  on  behalf  of  the  adnaui^iu'u.i,  to  tlie  commissioa- 


106  IN  THE  COURT  OP  AITKAL> 

1800  :i  order  lo  ohtain  compensation  for  the  money  paid  by 

Juhn  into  tin-  treasury  <if  this  state,  tovar.i- 

lactiun  of  the  n  .ml  several  bonds.     That  he  can- 

not charge  his  nu  mt.ry  with  the  particular  papers  referred 
to,  and  filed  \\ith  the  memorial  in  tin*  office  of  the  com- 
•  ners,  nor  has  he  any  recollection  that  any  document 
va*  wantini;  to  s-.ih.var.ii.iie  the  claim.  He  Ki>  >ince  search- 
ed among  hi>nun  papers,  and  cannot  lind  either  bonds  or 
mortgage  from  J.  Dorsfv  to  Russell  in  his  t  i,  and 

tl>;:t  whatever  [.:i;  »TS  w.-iv  l.dgcd  with  the  commissioner?, 
he  the  deponent  has  heard  and  believes,  have  since  been 
removed  to  Grail  liriUrin',  and  from  his  not  bring  aMc 
to  tind  any  of  the  said  papers,  the  deponent  believes  they 
were  all  lodged  by  him  with  the  coinmi--ioner-i,  and  ate 
turn  in  their  possession  in  (treat  liriicin." 

The  foregoing;  evidence  was  cfl'md  by  the   defendant  to 
lay  a  foundation  for  pro>m£   that  a  di«l  of  ni< 
certain  negroes  vas  cxcruird  by  the  defendant  to   James 
•H  in  irf-3,  under  ar.d  through  which    the  defentlant 
claimed  the  i.rgroo  for  wl  'uli    the  piesent  suit  is  bi  • 
and  that  the  deed  of  morljiaue  is  not  in  the  power.  p< 
s"n»n   or    control,  of  the  defendant     The  defendant   then 
produced  an  original  record  book,  one  of  the  iand    r 
«f  the  general  court,  and  oil'.-red  to  read  to    the  court  and 
jury  the  insjtexinnts  of  the  deed,  found    on  the  rccoid*  uf 
the  said  court,  from  the  defendant  to  JlusycU,  datcii  » 
if  December   17C3,  ami  the  marginal  entry  in  the  i 
book.  staMiii;  said  deed  to  be  examined,  as  evidence  of  the 
contents  of  ti.e  original  deed  of  niortaa^e.    pm\fd  to  ha\e 
been  executed  by  the  defendant    lo  Jhu»eO  in  170 3.     To 
the  reading  of  tln>  paper  from  the  record  book,  as  evidence, 
the  plaint itV  objected. 

Shavjf.  Mason,  and  Johnson,    for  < he  Plaintiff,  cited   \ 
Morg.   F.its.    159,   ICO.   Pope's  M  ''•,   34. 

'/'••i alt  Per   A.'i*,  355,  4.14.  Eden  vs     ChuJkiil,    \ 
1  17.  f'/imt;/'*   /.user  i-*.    tl'atl.-hix.   I   //arr.  \  ./ 
527.  Hull  vs.  <  \e.e ,  (ante  380.^  l^uk^s  Li  U. 

97,  HOj  4-  Hull.  A'.  /'.  255,  256. 

I'm,  (.Ttfnrnri/  Ctnrral.)  and  Kni.  fur  the  defendant, 
ri'.-.l  llnH  rx  dit!',-  .-,  (unit  580J  1'aikc's   • 

.ud    1  Murg.    /:».  101. 


OF  MARYLAND.  4$] 

CHASE,  Ch.  J.     The  question  before  the  court   now,  is        1809 

nt  from  what  it  was  on  the  former  trial.  Here  the 
defendant  ha*  laid  a  foundation  whereon  to  authorise  the 
inspex-lmiis  of  the  deed  to  be  read;  and  the  question  is, 
what  other  kind  of  evidence  will  be  sufficient  for  that  pur- 
pose? 

Where  a  deed  is  lost  or  not  in  the  power  of  the  party 
to  produce  it,  it  is  only  necessary  to  show  an  examined 
cop}-,  or  prove  the  contents  of  the  paper. 

The  court  consider  the  inapeximns  in  this  case  to  be  a 
true  copy.  The  clerk  had  authority  to  record  the  deed 
as  to  the  real  estate,  and  the  copy  is  wood  as  to  the  real 
estate.  If  it  is  a  true  copy  as  to  the  land,  it  is  equally  so 
aa  to  the  personal  estate.  The  court  consider  it  the  next 
best  evidence  to  the  deed  itself,  and  far  preferable  to 
parol  proof. 

This  case  is  distinguishable  from  that  of  Cheney  vs.  Ifat- 
kins.  In  that  case  there  was  no  question  about  the  inspex- 
inim  of  the  deed,  tiiat  the  court  recollect  of. 

In  the  case  of  GUI  ings  vs.  Hall,  it  was  the  inspeximus 
of  an  ancient  deed  which  needed  no  recording,  and  where 
the  clerk  had  no  authority  to  record  it;  but  as  the  possessi- 
on had  gone  with  the  deed,  it  was  on  those  two  grounds 
read. 

The  court  are  of  opiiion,  that  the  inspcximus  of  the  deed 
of  mortgage,  from  the  defendant  to  James  Russell,  is  legal 
evidence,  an;i  admit  the  same  to  be  read  in  evidence  to  the 
jury.  The  plaintiff  excepted- 

4.  The  second  bill  of  exceptions.  The  defendant  then  read 
in  evidence  an  affidavit,  (on  the  files  of  the  treasury,)  made 
by  him  on  the  18th.  of.  May  1781,  before  Jllhn  Quynn,  Es- 
quire, a  justice  of  the  peace  of  rfnne-jlrundel  county,  [See  2 
/Ian:  Eni.250,  and  the  act  of  October  1780,  ck.  5,  s.  il.] 
lie  also  read  in  evidence  the  entry  in  the  books  of  the  trea- 
surer, of  the  payment  into  the  treasury  by  him,  the  defen- 
dant, on  account  of  a  debt  due  to  James  Russell,  \_Sce  2 
Jltirr.  Ent.  230  and  251,  and  the  act  of  October  1780,  ch. 
5,  s.  11.]  He  also  produced  and  offered  to  read  the  re- 
cord and  proceedings  in  the  court  of  chancery  on  his  ob- 
taining the  benefit  of  an  act  of  insolvency,  to  prove  that 
William  M'Laughlin  and  Archibuld  Alontreiff,  were  duly 


403  IN  T!IE  COURT  <>;<    API 


I 


18f)0.         appointed  his    trustee  fo).      II  •<!  in 

that    .!/'  La.if'Jt  Itn    and 

of  the  trust,  anil  tliat  M'f,«»-hlin  d'n-d  about  the 
y.-.ir  1795,  and  that  MiHivn-lJf  MII  v:\ed  him;  and  al- 
so offered  to  read  in  r  r.ls  of  the 

general  court  office,  certain  entries  of  a  su!l  brought  in  that 
court  in  the  year  1707. 
of  the  dclVndrtiit,  against  Tliomns  Gansuu'Htji  and  the  re- 

newals thereof.      I]         •;>  offered    M  re;;d  in    evidence  the 

< 

"1  aiul  proceedings  in  the  court  of  chancery  in  1797, 
of  Tlioinus  Gassuv^nfn  haviui;  a])plied  for  and.  obtained' 
the  bcnefitfcf  an  insolvent  law,  in  order  to  prove  that  Tho- 
mas Gassawtw  never  paid  any  consideration  for  the  ne- 
p-oes  before  his  voluntary  s;ift  of  thvia  to  his  son,  the  j.hiin- 
ti;V,  nor  at  any  tiuie  since(/>). 

CHASK,  Ch.  J.  T!ic  court  refuse  to  admit  tl>e  above  facts 
fo  lie  given  in  evidence  to  the  jur}\  to  prove  ihut  T 
'•      'tirat/  never  paid  any  consideration   for  the   n< 
before  his  voluntary  gift  of  tlu-ni  to  iits  son,  l!ic  pLuntiH', 
nor  at  any  time  sinccj  the  court  bein^  of  opinion,  that  tiir 
acts  and  declarations  of  the  defendant  in  this  case,  subse- 
quent to  the  sale  by  him  to  77{o;>ia.>  Gassatvciy,  and  \\lut 
over  was  consequent  thereon,  are  not  evidence  to  defeat 
the  claim  of  the  plaintiff.     But  the  court  are  of  opinion, 
Iliat  t!»e  affidavit  and  payment  into  the.  treasury,  by  the  de- 
fendant in  1781,  prior  to  tlie  sale  by  him  to  T!i;tm'.i* 
sawny,  are  admissible  evidence  to  prove  tl>e  defendant  wag 
indebted  to  James  /.Vrwr.V,  and  made  the  payment  into  the 
treasury  in  the  manner  therein  stated.     The  deiciuL 
tepted. 

5.    The  third  bill  of  exceplinns.     The  defendant  then 
read  in  evidence,  the  affidavit  made  by  the  defendant   be- 
.  Hie  n  Qui/nn,  and  on  the  files  of  the  tivasmv;  al--> 
the  entry  in  the  l)»<>!^  of  the  treasurer,  of  the  payment   by 
the  defendant   into   the  treasury  on  account  of  a  debt  due 
-.  produced  and   oil'i-p-d  uii-.-i.d   there- 
cord   and   proceedings   in   t!i?  court  of  chancery,   on  the 
;i;.jili,  alion  of  the  defemlant,  and  his  obtaining  the  benefit 

(o)    ;  .i*t  littssell  was  a   creditor, 

and  1'fi'inuu  Qasvatuuy  a  i! 

,  in  }>'.*  nclicJulc,  ri'ttiracii  the  trus'.ccs  o. 


OF  MARYLAND.  409 

oFan  insolvent  law,  to  prove  the  acknowledgment  and  ad-  1809 
mission  of  the  defendant  in  1787,  that  his  mortgage  to  Rus- 
sell in  17G3  was  then  outstanding  unsatisfied.  The  defen- 
dant then  prayed  tlie  opinion  of  the  court,  and  their  direc- 
tion to  the  jury,  that  such  evidence,  though  subsequent  to 
the  sale  of  the  negroes  by  him  to  TJiomas  Gdssftway,  is 
competent  evidence  against  Gassaway,  or  the  plaintiS",  he 
the  defendant  then  holding  anil  possessing  the  residue  of 
the  mortgaged  property,  or  part  thereof. 

CHASE,  Ch.  J.  The  court  reject  the  evidence,  The  ue« 
fendant  excepted. 

C.  The  fourth  bill  of  exceptions.  The  plaintiff*  then  pro- 
duced, and  offered  to  read  in  evidence,  (for  the  purpose 
uioue  of  proving  that  the  mortgage  from  the  defendant  to 
James  llusscll  was  paid  and  satisfied  before  the  commence- 
ment of  the  war  between  America  and  Great-Britain,)  a 
bill  in  the  court  of  chancery  filed  by  James  Clerke,  ad- 
ministrator of  Russell,  against  Luther  Martin,  William 
Uuchanan,  Archibald  Moncreiff\  Robert  Dorset/,  &nd  Win. 
Jf.  Dorset/)  with  all  the  proceedings,  and  the  decree  of  the 
chancellor  thereon.  To  the  reading  of  which  the  defen- 
dant objected. 

CHASE.  Ch.  J.  The  proceedings  are  between  different 
parlies,  and,  therefore,  cannot  be  used  as  evidence  in  this 
case.  If  (.lie  decree  had  been  tiiat  the  mortgage  debt  was 
unsatisfied,  it  could  not  be  used  against  the  plaintiff,  and 
the  rule  must  be  mutual. 

Although  the  answer  is  in  the  handwriting  of  the  de- 
fendant, yet  he  may  have  only  acted  as  a  clerk.  He  has 
not  himself  sworn  to  it. 

The  court  refuse  to  let  the  proceedings  be  reaJ  to  ths 
jury  for  the  purpose  required  by  the  plaintiff's  counsel. 
Tue  plaintuF  excepted. 

7.  The  fifth  bill  of  exceptions.  The  plaintiff  then  cross 
examined  Robert  Dorsey,  a  witness  produced  on  the  part 
of  the  defendant,  and  proved  by  him,  that  he  appeared, 
together  with  Archibald  Moncreiff  and  William  II.  Dorsey , 
as  the  trustees  of  the  defendant  in  this  cause,  to  a  bill  in 
the  court  of  chancery  filed  against  them  by  Clerke,  ad- 
ministrator of  Russell,  and  made  the  answer,  now  pro- 
duced, to  that  bill.  That  he  obtained  his  knowledge  of 
the  respective  facts,  stated  in  that  answer,  frwra  the  tle- 
YOL.  Ji.  52 


CASKS  IN  THE  COUUT  OF  APPEALS 


fcnJ:i!it  in  this  cause,  and  from  his  books,  and  that  the  an- 

il  in  tlie   handwriting  of  the  defendant  in  this  « 
The  plaiutift  then  prayed   the  opinion   of  the  court,  and 
•  lii-eclion  to  the  jury,  that   if  the  jury  are   Kili^lied, 
from  the  evidence,  that  the  respondents,  named  in  the  ^aitl 
answer,  obtained  their  knowledge  of  the  facts  stated  th 
from  the  defendant,  and  the  answer  is   in  the  handwriting 
of  the  defendant  in  this  cause,  that  then  the  answer  i>  evi- 
dence to  prove  the  mortgage  debt  had  been  discharged  as 
is  stated  in  the  answer. 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  the  de- 
clarations of  the  defendant  are  evidence  admissible  to  the 
jury,  and  that  the  witness  may  recur  to  the  answer  to  re- 
fresh his  memory  as  to  the  declarations  made  to  him  by 
the  defendant.  But  the  court  refuse  to  allow  the  ai 
to  be  read  in  evidence  to  the  jury.  The  plaintiff  except- 
ed. 

8.    Tlic  sixth  bill  of  exteplion*.      The  plaintiff  then  of- 
fered in  evidence,  by  the   testimony  of  Robert    Dorsey, 
that  the  contract  and  purchase  made  by  Edward  Dorsey, 
vilh  and  of  William  Cooke,  esquire,  of  the  negroes  men- 
tioned in  the   declaration,  as  stated  in  the  deposition  of 
Cooke,  was  made  by  Edwcrd  Dorset/,  at  the  request  and 
tor  the   benefit  of  the  defendant,  and  that  the  money  or 
juice  paid  to  Cooke  for  the  slaves,    was  the  money  of  the 
defendant;  that   Edward  tiorxey,  or  his  estate,  he  bring 
dead,  have  no   interest  in  the   slaves,  but  that  the  defen- 
dant is  the  only  poison  tlMimmu;  under  the  purchase  from 
Cooke.     The  defendant  farther  offered  in   evidence,   that 
]>••  purchased  the  negroes  in  controversy  in  1796,  through 
E'lirard  Dorsry,  from  Clerke,  the  administrator  of  Jtirssclt; 
that  the  negroes  were  sold   by  the  defendant  to   TViomw? 
Gassaway,   under    whom   the   plaintiff   claims,   in    1782. 
And  to  prove  that  he  the  defendant,  between   17H 
1796,  obtained  the  benefit  of  an  insolvent  law,  he  produc- 
ed in  evidence  the  insolvent  law  passed  at  April  » 
1787,  ch.  34;  and  also  produced  and  read  in  evidence  the 
record,  proceedings,   and  release  of  him   the   defendant, 
under  that  insolvent  law.     He  further  offered  in  evidence, 
that  the  negroes  in  controversy  are  the  descendants  of  ne- 
gro Rachel,  included  in  the  mortgage   from  the  defendant- 
to  Russell,  and  sold,  as  before  stated,  by  the  defcndaut  to 


OF  MARArLAND.  Hi 

TJiomas  Catsnway  in  1782.  The  plaintiff  then  prayed  1809 
the  court  for  their  opinion  and  direction  to  the  jury,  that 
if  from  the  evidence  the  jury  are  satisfied  that  the  pur- 
chase of  the  negroes  named  in  the  declaration  made  by 
Edward  Dorscy,  as  stated  in  the  deposition  of  William 
Cooke,  was  made  by  Edward  Dorsey,  by  the  authority  and 
direction  of  the  defendant,  and  for  the  benefit  of  the  de» 
fendant,  and  that  the  purchase  money  paid  to  Cooke  for 
the  negroes  was  the  money  of  the  defendant,  that  then  the 
plaintiff  is  entitled  to  their  verdict  for  the  negroes  in  the 
declaration  named,  and  damages  for  the  detention  thereof. 

CHASE,  Ch.  J.  The  defendant  cannot  be  permitted  to 
disaffirm  his  own  sale.  He  cannot  be  suffered  to  set  up 
his  discharge  under  an  insolvent  law  to  disaffirm  his  prior 
acts. 

The  court  are  of  opinion,  that  if  the  jury  find  the  mort- 
gage was  satisfied  in  the  year  1 782,  when  the  defendant 
sold  the  negroes  to  Thomas  Gassawayt  that  the  plaintiff 
has  a  good  title  to  them. 

The  court  are  also  of  opinion,  that  if  the  mortgage  was 
subsisting  in  1782,  and  the  defendant  sold  the  negroes, 
claiming  the  absolute  ownership  in  them,  and  for  a  full 
consideration,  although  as  to  James  Russell  his  sale  would 
transfer  only  the  equitable  interest  in  the  negroes;  yet  &3 
between  the  vendor  and  vendee,  the  operation  of  the  con- 
tract would  be  to  pass  the  absolute  ownership  in  the  ne- 
groes to  the  vendee,  and  according  to  good  faith  and  ho- 
nesty the  subsequent  acts  of  the  defendant,  in  perfecting 
Lis  title  to  the  negroes,  will  enure  in  law  to  confirm,  and 
rot  to  defeat,  his  contract  with  Thomas  Gassaivay.  The 
defendant  excepted. 

9.  The  seventh  bill  of  exceptions.  The  plaintiff  then 
offered  in  evidence,  by  the  testimony  of  Robert  Dorsey, 
that  he  understood  from  his  father,  the  defendant,  since 
the  year  1790,  that  he  had  made  considerable  payments 
and  remittances  to  Russell,  between  the  years  1763  and 
1776,  in  sterling  money,  amounting  to  ^3,915  18  Q;  that 
Russell'.'!  administrator  claimed  the  right  to  apply  the  mo- 
ney so  paid  to  the  satisfaction  of  certain  debts  due  from  the 
Defendant  to  Russell,  upon  open  account,  contracted  after 
Die  date  of  the  mortgage,  and  that  the  representatives  of 


IN  Tin:  rorRT  ov  AITKALS 

the  defendant  claimed  to  apply  0»e  payments  1o  the 
faction  of  the  mortgage.  The  plaintift'  then  graved  il.c 
court  for  their  opinion  and  direction  to  the  jury,  that  it" 
they  aro  satisfied  tliat  the  said  .sums  \vere  |  aid  at  the  times 
above  stated,  and  there  is  no  evidence  to  satisfy  them  that 
the  payments  wl.en  made  were  p.ii  titular!  y  applied  to  any 
specified  debt.  either  by  tin-  defendant  or  /iN/.v.ve//,  that  then 
the  law  \vill  apply  the  «amc  to  the  satisfaction  of  the  iiit.it- 


CnAsr,  Ch.  J.  There  can  bo  nn  doubt  hut  the  lau-  v.  ill 
apply  the  payments  to  the  satisfaction  and  discharge  of  the 
niortjiau-e.  The  court  give  the  direction  prayed.  The 
defendant  exceptcd. 

10.  The  eighth  bill  of  exceptions.     The  defendant  then 
prayed  the  opinion  of  the  court,  and  their  direction  to  the 
jury,  that  the  declarations  of  the  defendant,  which  ni  •> 

to  have  been  made  by  him  since  the  sale  made  by  him  to 
Gassawm/,  and  since  the  insolvency  of  him  the  defendant, 
cannot  be  used  in  evidence  by  the  plaintill'to  the  injury  of 
the  title  and  interest  of  Russell,  or  any  other  person  claim- 
ing under  Russell. 

CIIASF,  Ch.  J.  The  court  are  of  opinion,  that  the  decla- 
rations of  the  defendant,  are  evidence  a~ainst  him.  T.e 
defendant  exccpte.d. 

11.  11\e  ninth  bill  of  exceptions.     The  defendant  then 
prayed  the  opinion  of  the  court,  ami  their  direction   to  the 
jury,  that  as  the  defendant  only  insisted  that  tl.. 

Mas  paid  by  certain  payments  being  made,  which  ou^lu  to 
be  applied  in  the  first  instance  to  the  mortgage  in  prefe- 
rence of  other  debts,  not  because  he  did  not  owe  more,  but 
that  \<hat  he  paid  should  be  first  applied  to  the  mortL 
that  the  principle,  that  the  payments  so  made,  should  op- 
ply  to  the  discharge  of  the  in-  :  mid  only  '•>••  c.micd 

into  eftrct  in  favour  of  honafule  purchasers  haxing  bi.n^ht 
and  paid  for  the  articles,  and  not  in  fav«.ur  of  the  plaiiitill', 
\vliuv  father  had  not  paid  for  the  negroes  by  him  pur« 
chased. 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  the  pay- 
ments made  by  the  defendant  to  fiiisyll,  if  the  jury  -sliall 
find  they  were  nude  as  stated,  ought  to  be  ^applied  to  the 


OF  MARYLAND.  413 

dischatge  and  satisfaction  of  the  mortgage  in  favour  of  the       1809. 
plainlitt',   unless  t!ie  jury   shall    find   that    Tfwmas  Gasw-      v— v— •* 
v.'ay  made  tlie  gift  to  his  son,  the    plaintifl'.  to  delraud  his  V, 

G:i»»xw$y 

creditors.     The  defendant  cxccpted. 

12.  The  tmlh  bill  of  exceptions.  The  defendant  further 
prayed  the  opinion  of  the  court,  and  their  direction  to  thn 
jury,  that  unless  the  jury  believe  that  the  mortgage  money 
was  satisfied  before  the  sale  made  by  the  defendant,  or 
that  the  plaintiff',  or  his  father,  under  whom  he  claims,  had 
pnid  the  purchase  money  for  the  negroes  to  the  defendant 
or  Russell,  er  some  person  entitled  to  receive,  the  same, 
that  the  plaintifi'  was  not  entitled  to  recover  any  other  than 
nominal  damages. 

Martin*  (Attorney-General,)  for  the  Defendant,  cited 
5  Bac.  J3b.  tit.  Grant,  (I).)  382.  Walker  vs.  Constable,  1 
Uos.  4-  Pull.  306.  Moses  vs.  JUacferlin,  2  Burr.  1005;  and 
Esp.  A7.  P.  101. 

CHASE,  Ch.  J.  The  jury  may  give  what  damages  they 
think  the  plaintiff  is  justly  entitled  to  as  an  equivalent  for 
the  injury  sustained. 

The  court  are  of  opinion,  that  it  is  within  the  province 
of  the  jury  to  ascertain  and  fix  the  quantum  of  damages, 
as  an  equivalent  for  the  use  ef  the  negroes,  according  to 
what  they  may  think  right  on  consideration  of  the  evidence; 
and  that  they  arc  not  restrained,  by  any  principle  of  law 
operating  on  (his  case,  from  the  full  exercise  of  their  judg- 
ment. The  defendant  excepted. 

It  was  admitted,  and  it  is  to  be  considered  as  part  of 
tl>e  statement  in  this  cause,  on  which  the  court  has  given 
its  opinions,  that  James  Russell,  the  alleged  mortgagee 
of  tlie  defendant,  was  in  the  year  1763  a  subject  of  his 
Kritannic  majesty,  residing  in  Great  Britain',  that  in  the 
year  1772  he  \vnsin  Maryland  on  a  visit,  and  soon  re- 
turned to  Great  Britain,  and  continued  to  reside  there 
from  the  year  1774  to  his  death  in  1787,  a  subject  of  thf 
crown  of  Great  Britain',  and  that  on  the  4th  of  July  1776, 
the  then  province,  now  state  of  Maryland,  became  an  in- 
dependent government,  and  from  that  day  until  the  30th 
of  September  1783,  open  war  existed  between  this  state 
aud  the  king  of  Great  Eritatn. 


4U  CASES  IN  THE  COURT  OF  APPEAL- 

1809  -Met  ami  judgment  for  the  plaintiff.     The  defendant 

tied  to  this  court,  ami  on   the   death  of  the   apj-ellee, 
liis  t-  \exii  lur»  \vcre  tr.ude  |.;.i 

The  «jue*'S»ns  arising  under  the  second,  third,  sixth,  se- 
';lh.  i)infh  and  tenth  bi1  ,>tinns,  wen-  ar- 

neture    I'OLK,  BUCHANAN,    NICHOLSON,  and  EABLK* 
J.by 


t,  for  the  Appellant:  and  by 
Juhnzon,  (Attorney-General,)  for  the  Appellee. 

Tin:  Corn  r  ajrrerd  with  the  General  Court  in  the  npini: 
\|n-f—  I'd  in  the  several  Mils  of  exceptions   taken    on* 
the  part  of  the  defendant  in  that  court. 

JUDGMENT  AFFIRMED. 


HAMILTON  vs.  BF.ALL,  el  aL 

\ — , — > 

A  H.  h-M-;:  on-      APPEAL  from  the  Court  of  Chancery.     The  complain- 


ant,   (now  appellant.)  by  his  bill  filed  on  the  20th  of  April 
••ivr!   h>  1708,  stated  that  George  Gordon,  beinjr  seized  of  certain. 

the  Irauil  :md  ini- 

r  «r  tf'e  lots  in  fee  in  Gtorgt-jTottm,  by  hi-*  will  dated    1766,  de- 
j-»i,  t,.  .A  TIM,  -a  vised  the  house  and  lot  No.  48,  and  the  acre  of  land  wherc- 

rouvt  \aiirr    I"    It  J 

n,  Mr -tar  lot  t,,r  on  ^|,c  o|,|  warehouses  are  erected,   in    fee,  to  his  "rai. 

R    *rtU|i|   fl'H*'*  *  * 

•1..JI    i  :«uti  i.i.  .uiftnn,  and  lot  No.  52.  witit  the   wart 

DIII  in  ciianct  r\  HI  •  > 

::-ercon,in  lee,  to  his  granilson  Chtirlei  £.  Hamilton.  That 

nlvft'r.r  n'i/.M1-  a^C1'  ^l'0  death  of  the  tes-tator.  George  and  C/iarlf:, •  rc^pec- 

^i'/rtV'n","!,1  t'rvel y  entered,  &c.    That  they  both  afterward-,  wet.t  to 

'""„  sea,  and  died  intet'aie,   leaving  Thomas   Hamilton  their 

ti£j' •"'t'.'a "<S^.a.'«  heir  at  law.     T'n::t  Thomas  I/cniillon,  being  sei/.rd  <if  the 

[TwYvrilnt  *B  a  lota  dt'vi-ed  \n  fi'^rze  F.  Ifni,iitlon,  died    in    1783,  \\ith- 

p*"r- out  hav»O|  made  any  valid  testamentary  disposition  of  the 

romvtetfMiit  tuf-  li  ill  not  having  been  executed  in  the  manner  pic- 

ti.-itp  i-ix.-iri.  i,.-  scribed  bv  law  to  pass  rt.il  i-'.i:r;  and  havir't  died  intes- 

.!-««  J     , 

;..n>  i.nih  tatc  as  to  the  lots,  the   Mine   descended   to  If  t  Ilium   tfa- 

•jntr  '  i     i      •  i 

imp-nv,.i      ami  HIM/OH,  who  was  liu  eUk'.st   son   and   heir  at  law.      1  hat 

*h*ni-><l.  »ii  : 

•in  Hamilton  aftenvarda  ilied,  having  made  his  will 
M  June  IT  liich  the  lots  aje   not   particularly   de- 

.   but  if  they  pa.-^ed  li\  the  exprus^iou  in   t'ue  wi!!,   it 
.  (I,.-  complainant,  and  who  was   his  eldest   son  and 
'"  Utrir  at  law.     That  after  the  dc-itu  of  his  father,  the  ccia* 


trrov't. 


OF  MARYLAND.  415 

plainant  resided  in  Monongalia  county,  in  ilie  common-  1809 
•wealth  of  Virginia,  and  that  in  the  year  1791,  Krook& 
He(dl,  since  deceased,  (whose  father  had  intermarried  with, 
Ruth)  one  of  the  daughters  of  Thomas  Hamilton,}  welt 
knowing  the  premises,  and  that  for  want  of  a  legal  execu- 
tion of  the  will  of  Thomas  Hamilton,  the  lots  were  the 
property  of  the  complainant,  and  intending  to  defraud  the 
complainant  thereof  by  untrue  and  deceitful  pretences,  frau- 
dulently procured  Andrew  Hamilton,  who  was  named  execu- 
tor in  the  will  of  Thomas  Hamilton,  to  repair  to  the  com- 
plainant in  Virginia,  where  he  resided,  and  by  deceit  and 
fraud  to  obtain  a  legal  conveyance  from  him  to  ft  call  for 
the  lots;  and  that  Andrew  Hamilton,  acting  by  the  pro- 
curement, and  by  the  directions  and  with  the  consent  and 
knowledge  of  lieall,  falsely  and  deceitfully  alleged  and 
pretended  to  the  complainant,  (who  was  then  little  more 
than  21  years  of  age,  and  was  ignorant  and  unlettered,) 
that  the  will  of  the  complainant's  grandfather,  Thomas 
I2unultont  was  good  and  valid  IB  law,  only  that  he  had  not 
thereby  authorised  or  empowered  him,  Andrew,  although 
appointed  his  executor,  to  sell  the  lots;  and  Andrew  fur- 
ther informed  the  complainant,  that  he  must  give  him  a 
power  of  attorney  for  the  purpose  of  acknowledging  a  con- 
veyance from  the  complainant  to  Benll  of  the  lots,  which 
Andrew  said  he  had  consented  to  sell  to  Beall,  under  the 
will  of  Thomas  Hamilton,  or  that  the  complainant  must 
go  to  Maryland  to  execute  and  acknowledge  the  same,  or 
that  he  (Andrew,)  must  apply  to  the  governor  and  council 
of  Maryland  for  an  order  to  sell  the  lots,  under  a  late  act 
of  assembly  of  that  state,  which  Andrew  falsely  alleged  to 
have  passed,  and  that  the  complainant  therefore  would  be 
obliged  to  attend  at  Annapolis  to  make  valid  the  sale;  That 
the  complainant,  being  young  and  unlettered,  and  placing 
confidence  and  belief  in  what  Andrew,  in  behalf  and  by 
the  procurement  of  BeuU,  falsely  told  hiru,  and  fearing 
that  he  must  either  execute  a  conveyance  for  the  lots,  of 
be  subjected  to  the  expense  and  inconvenience  of  attend- 
ing at  Annapolis,  as  Andrew  had  falsely  and  deceitfully 
told  him  he  must  do,  and  being  likewise  without  money, 
and  his  mother  then  ill  in  bed,  and  depending  on  him  for 
assistance  and  support,  he  was  induced  to  execute,  and 
did,  on  the  7th  of  February  1791,  execute  a  conveyance  to 
JBettlt  for  the  lots  before  mentioned^  for  the  trifling  consi- 


(  A>I>  IN  Tin:  coruT  or  APPEALS 

1809.        tlrr.iii'ni  of  tftrff  poitnds  ten  rm  rent  mon>-y, 

»s  all  (hat  he  rtvrned.    ami  whit-li  he  v.onld  by  no    i 

iri.epti'd  aj>  a  consideration  for  the  lots,  but  for  the 
iiii|.oMtion  practised  on  Mm  a>  before  mentioned.  That 
after  the  e\ecution  of  the  deed,  to  wit.  in  170;>,  licttll  dud. 

<!  of  the  lots,  and  inM-srate,  leauii^  a  widow    <v 

iiildrcn,  to  whom,  bv  law,  his  real  e^iate  equally  de- 

i'.-d,  to  xv it,  &.c.  the  defendants.  Prayer,  that  the 
ron\ryance  may  be  set  aside  and  rendcicd  null  and  void, 
\i  .  and  fiir  further  and  other  relief 

The  anwera  of  the  defendants,    (one  of  them  facing  an 
infant  answered  by  his  guardian    for  t'.iat  piirpor-e  appohit- 

•  (Imitting  certain  facts  set  forth  in  the  bill,    and  their 
ignorance  of  others  -tated,  that  Tlicmas  Hamilton,  claim- 
ing to   be  heir  at  law    of  Cluifha  E.  Hamilton,    con\ 
that  part  of  lot  Xn.  51.   which  was  devised   to  (.'hut 

•n,  to  Ju'ui  6V?,   wlio  afterward*  conveyed    the  *.tm^ 
/.    the  ancestor    of  the   defendants. 

iiie  death  of  T/r.mum  Hamilton,  his  executor  .7 
Hamilton,  offered  to  sell  to  Rrookc  Tttull  the  lots  which  is 
the  object  of  the  bill  of  complaint,  but  on  examination  it 
'ounJ  that  there  was  a  defect  in  the  title,  and  it  u::s 
agreed  between  JnJteic  Hamilton  and  BculL  that  if  a 
good  and  complete  title  could  be  procured  for  the  lot-,  he, 
Ucull,  v.  iiiild  become  the  purchaser;  whereupon  Hinniltiin 
agreed  to  procure  a  title,  and  obtained  the  deed  mentioned 
in  the  bill  from  the  complainant  to  lhafl,  and  J'eatl  paid 
to  Hamilton  for  the  lots  £700  or  /SOO.  The  defendants 

that  ttuill  ever  did  in  any  manner  advise,  or  through 
false  pretences  persuade  the  complainant  to  convey  the 

nor  do  they  believe  that  .flnJrew  Hamilton  took  any 
i.ndue  means  to  effect  that  end.  They  refer  to  the  con- 
M-vance,  and  pray  that  it  may  be  taken  a-,  part  of  their  an 

,  and  Bcatt  bein^  a  purchaser  for  a  vain  Meta- 

\\ithont  fraud,  they  contend,  that  neither  him,  nor  hi-1 

.  ou^lit  to  be  disturbed  in  tin-.  That  the  com- 

plainant   never  did,  as    they  arc   informed   and  1>« 

;mv  claim  to  the  lots  either  of  /trail,  in  his  life-time, 
ur  of  his!.  !ii.-t  death,  until  the  present  applicati- 

on; and  they  are  ignorant  of  any  fraud  ever  having  i>  -T 
practised  on  him.  That  MIICC  the  purchase,  on  the  faitli 
thereof,  lirul!  mad.-  \alu  ibiu  improve.nent-.  &  The 
answer  of  Andrew  I/amillou,  also  osic  of  tlie 


QF  MARYLAND.  t 

Siated,  among  other  things   material  to  be  noticed,  that  a3        1805 
executor  of  Thomas  Hamilton,  not  knowing  of  any  defect 
in  the  title,  he  advertised  the  lot  or  acre  of  ground,  where- 
on the  old  warehouse  formerly  stood,   for  sale,  and  on  the 
3d  of  January  1791,  exposed  the  lot  at  public  sa'e,  where 
there  were  several  bidders,  and  among  others  Brooke  Be.alt^ 
and  it  was  fairly  struck  oITtohim,  as  the  highest  bidder, 
for  £&25.     That  after  the  sale,  the  title  papers  were  by  the 
defendant  put  into  the  hands  of  Beall,  to  prepare  the  con- 
veyance.    That  it  was  discovered  by  Beall  that  the  will  of 
^Thomas  Hamilton  was  defective,    there  not  being  three 
witnesses  to  it,  and  on  that  account  the  legal  estate  had 
descended  to  the  complainant,  who  was  the  heir  at  law  of 
William  Hamilton.     That   Bealt  refused  to  pay  the  pur- 
chase  money  until   the  title  of  the  complainant  could  be 
obtained,  either  to  himself  directly,  or  to  some  person  who 
would  convey  to  him;  that  Mr.    Gantt  was   consulted  as 
counsel,  and  he  advised  the  making  of  a  deed  to  lhu.ll  di- 
rectly from  the  complainant,  as  the  most  proper  mode  of 
securing  the"  title,  and  a  deed  was  prepared  by  Mr.  Cfimttt 
for  which  the  defendant  paid  him.  The  defendant  afterwards, 
in  February  1791,  went  to  Virginia,  where  the  complainant 
then  resided,  and  carried  with  him  the  deed  so  prepared^ 
and  a  copy  of  the  will  of  Thomas  Hamilton.     That  the 
defendant  showed  to  the  complainant  the  copy  of  the  will, 
explained  to  him   the  defect,  and  informed  him,   that   it 
having  only  two  witnesses  would  not  authorise  the  defen- 
dant to  make  a  title  to  the  purchaser,  that  the  tvill  was  in- 
operative as  to  the  land;  that  Beall  had  become  the  pur- 
chaser, but  refused  to  complete  the  contract  unless  the 
complainant  would  convey  the  laud.     The  defendant  then 
showed  the  deed,  so  prepared,  to  the  complainant,  and  ask- 
ed him  if  he  would  execute  it.     That  the  complainant,  be- 
ing fully  acquainted  with  the  nature  of  the  will,  voluntari- 
ly, and  without  any  hesitation,  agreed   to  convey   his  title 
to  the  property,  and  to  execute  the   deed  to   Beall.    That 
the  defendant  had  also  a  power  of  attorney  prepared   to 
have  the  deed  properly  acknowledged   by  some  person   in 
this  statej  but  the  complainant  informed  the  defendant, 
that  he  wished  to  make  a  visit  to  his  uncle  John,  who  re- 
sided near  Shepherd's  town,  and  Jiltcgany  county  being  on 
the  road,  he  would,  on  his  way  through   (hat  county,  exe- 
cute and  acknowledge  the  deedj  which  was  accordingly 
VOL    ii  53 


CASES  IN  THE  COURT  OT  APPEALS 

1809  done  on  the  Tth  of  February  1791.  That  the  complainant 
and  defendant  were  in  company  together  for  several  day* 
after  the  execution  of  the  deetl,  and  conversed  respecting 
it,  and  the  complainant  expressed  himself  satisfied  with  its 
execution.  "When  the  defendant  saw  tlie  complainant  se- 
veral voars  after,  he  did  not  express  any  dis-atUfac  tion  at 
having  conveyed  the  land  to  Dealt.  The  defendant  doniis 
that  he  ever  told  the  complainant  that  the  will  of  Tho 
Jfamilton  was  good  and  valid  in  law,  but  on  the  contrary 
informed  him  that  it  was  defective  and  inoperative  to  pass 
land,  or  give  any  power  or  authority  to  affect  the  same.  He 
also  denies  that  he  ever  informed  the  complainant  that  he 
•would  apply  to  the  governor  and  council,  kr.  and  denies  the 
other  allegations  stated  in  the  bill,  of  fraud,  deception,  &c. 

Testimony  was  taken  under  commissions,  and  the  cause 
having  been  argued  and  submitted, 

H  \vsox,  Chancellor,  (24th  September  18030  stated, 
that  whether  he  shall  decide  in  favour  of  the  complainant, 
or  in  favour  of  the  defendants,  the  case  must,  to  every 
candid  person,  appear  hard  for  the  loser,  and  most  proba- 
bly litigation  will  be  continued  as  far  as  possible  to  the 
great  expense,  trouble,  and  anxiety  of  both  parties. 

In  various  ca«esof  doubt  or  difficulty,  or  hardship,  the 
chancellor  lias  thought  proper  to  recommend  a  compromise 
and  decree  by  consent,  and  experience  has  convinced  him 
that  he  is  right.  He  considers  this  case  peculiarly  proper 
for  a  settlement  in  that  way.  He  has  never  had  before  him  a 
case  concerning  the  merits  of  which  he  more  doubted,  and 
of  the  event  of  which,  after  his  decision,  doubts  might 
more  reasonably  be  entertained. 

Acting  on  principles  which  have  always  governed  him, 
and  led  by  those  principles  to  consult  the  welfare,  a*  far 
as  his  power  extends,  of  every  suitor  in  this  court,  whose 
conduct  has  not,  in  his  opinion,  deserved  punishment  or 
reprobation,  he  proposes  an  adjustment,  such  as  he  believe* 
an  intelligent,  careful,  impartial  arbitrator  would  award. 
Such  as  cannot  be  greatly  detrimental  to  the  party,  who 
shall  be  finally  victorious,  in  case  this  proposal  shall  be  re- 
jected, but  which,  iu  such  case,  will  have  been  beneficial 
to  the  other  party. 

Let  the  parties,  by  writing   here  filed,  consent  to  .. 
crec  to  the  following  purport,  vii. 


OF  MARYLAND. 

1st.  The  defendants,  heirs  of  Brooke  Beall,  shall  on  or  1809. 
before  the  25th  day  of  March  next,  pay  or  bring  into  this 
court,  to  be  paid  to  the  complainant,  the  sum  of  800  dol- 
lars: and  in  case  that  sum  shall  not  be  so  paid,  or  brought  in, 
the  payment  thereof,  with  interest,  may  be  enforced  by 
execution  on  the  persons  or  property  of  the  defendants. 

2d.  The  complainant  shall  execute  and  acknowledge, 
according  to  law,  a  release  to  the  defendants  of  all  his 
right,  legal  or  equitable,  to  the  property  in  question. 

3d.   Each  party  shall  bear  the  proper  costs. 

This  recommendation  of  the  chancellor  was  not  acceded 
to,  and  he  then  passed  the  following  decree: 

The  defendants  having  rejected  the  chancellor's  recom- 
mendation, it  becomes  incumbent  on  him  to  determine  as 
a  judge,  wholly  in  favour  of  them,  or  of  the  complainant, 
according  to  the  best  of  his  judgment,  and  knowledge  of 
the  principles  of  this  court,  and  not,  as  he  wishes  he  were 
authorised  to  do,  in  the  spirit  of  a  fair,  impartial,  intelli- 
gent arbitrator. 

Under  the  special  circumstances  of  the  case  he  may  not 
speak  so  largely  as  it  is  customary  foi  him  to  speak  in  de- 
crees of  importance.  But  he  will  say  thus  far — As  he  is 
not  satisfied  that  a  fraud  was  perpetrated,  or  even  if  it  was, 
that  Beall)  the  purchaser,  was  a  contriver,  or  privy  to,  or 
partaker  of  it;  as  the  complainant  suffered  many  years  to 
elapsf  before  he  filed  his  bill;  as  the  property  hath  since 
been  greatly  improved  and  changed,  and  hath  devolved  on 
several  representatives,-  as  the  argument  from  convenience 
ought  always  to  have  influence,  he  cannot  think  the  com- 
plainant entitled  to  relict. 

It  is  true  that  some  of  those  reasons  would,  if  standing 
alone,  be  entitled  to  little  or  no  weight,  but  when  united 
th,ey  appear  to  form  a  sufficient  and  firm  prop  or  support 
fur  the  defendants. 

Were  indeed  the  chancellor  fully  convinced  from  the 
evidence,  vhat,  before  the  complainant  executed  the  deed, 
there  were,  between  him  and  Andrew  Hamilton^  transac- 
tions which  this  court  must  consider  as  constituting  a  fraud 
rm  the  part  of  Andrew,  the  circumstances  herein  stated  as 
reasons  would  not  induce  the  chancellor  to  refuse  relief. 
Consider  too,  the  rule  respecting  the  refutation  of  an  an- 
§wer— examine  the  answer  and  evidence  in  this  cause  to- 
gether— compare  the  testimouv  ou  each  side-— consider,  as 


1-20  CASES  IN  Till  r  OF  AiMT.AT.S 

1809.        we  must   do.  when   witnesses   differ,  who>«-   testimony  « 
most   probable — am-, tit  r   tnen  if   the  complainant*-   \\it- 
•etics  arc  correct,  and  their  testimony  is  to  prevail  -.<.. 
the  answer    and   «>ppo>:  ony,    how    far  i-_!" 

ghoulil  protect  a  man  in  this  court.  If  one  party  shall  toll 
the  other  a  roost  improbable  story  to  intimidate — For  in- 
stance, if  A  tells  B,  a  plain  common  fanner  or  planter  ia 
J'iriz'tttiu,  '*if  you  will  ni»t  execute  this  deed,  the  t,< .\uimr 
of  Mart/fond^  in  virtue  of  a  law  of  his  state,  will  -.end  for 
and  compel  you."  If  the  farmer  be  not  half  an  ideot  or  a 
lunatic,  or  in  a  state  of  mental  imbecility,  it  must  be  diffi- 
cult for  even  three  \vitm--vs  against  a  defendant1 
to  satisfy  the  mind  that  A's  declaration  has  induced  the 
farmer  to  make  the  conveyance.  The  testimony  of  lim-e 
vho  swear  to  Andrew  Hamilton's  declarations  musi  be  un- 
satisfactory; their  memories  must  be  defective, 
may  be  demanded,  wherefore  did  they  staud  by  and  per- 
mit the  falsehood  to  have  its  efl'ect? 

If  ignorance  were  by  this  court  protected  to  that  extent, 
Low  many  fair  contracts  might  be  set  aside!  l^miam  <•  in- 
deed, real  or  pretended,  might  in  many  instances  have  the. 
advantage  of  knowledge  and  wisdom.  In  the  chancellor's 
opinion,  on  a  view  and  comparison  of  all  the  proofs,  there 
has  not  in  this  case  been  that  stizpcslio  fa/si,  aut  siivj/rrs- 
sio  ten,  vhich  can  authorise  him  to  grant  the  relief  pray- 
ed by  the  grantor  in  tho  deed  against  fair  purc!ia>f:.>,  who 
have  long  been  in  possession  of,  and  iwp-oved  flu-  |  rop«T- 
tv,  before  a  demand  of  any  kind  made  of  or  against  them. 
flecrfed,  that  the  bill  be  dismisstil,  but  as  the  complainant 
had  probable  grounds  for  instituting  the  suit,  it  i>  di- 
ed without  costs.  From  this  decree  the  complainant  ap- 
pealed to  this  court. 

The  cause  was  arjrued  before   CnAsr,   t  h.   J.    POLK, 
BUCHANAN,  NICHOLSON,  and  KAHI.E,  J. 

Johnson.   (Attorney  General,)  and    Jlfagnuler,    for   the 
Appellant,  cited  1  Fonll.   I  SP.    I  /'DIC.  c</t  C"iil.   1-41),  M4. 
Urmlerick  v*.  limit  rick.  \  P.  H'm-i.  C 
1.56.     Evans  r-     '•  :  r,r<>.  (!i«,>.  Cn.  15C.    / 

dtn  vs.    Walker's  Ex'r.  6>-c.  (tinic  5R5.;    2  Jl»bl. 
Jinnincs  rs.  Muvrr.  <2  J'trn.  ('<(>[>.    li/iitLtn.-  <»£*> 

I  tiro.  Part.  Ca.  C44:  and  J&t  v*.  Martin,  4  T.L 


OF  MARYLAND. 


..Martin  and  Shaqff^  for  the  Appellees,  cited  1  fonbl.       1809. 
115,  189,  (note,)  384;  and  Fasley  vs.  Freeman,  3  7'.  7?.  51. 

UF.CHEK  AVKlKtlliU. 


BEIMCKF.R  vs.   SMITH.  JUNE 

SMITH  vs.   RKIKICKF.R. 

CROSS  APPEALS  from  a  decree  of  tlic  Court  of  Chan-  biT£-  J^"  £j 
eery.  The  complainant,  (Xeinickcr,)  filed  his  bill  of  com-  ^i;;;1^,^'™; 
plaint  against  the  defendant,  (Smith,)  stilting  that  Thomas  Z.^s.^',"^ 
Franklin,  being  seized  of  a  lot  of  ground  in  Baltimore,  ^SeS^SS^^ 
agreed  to  sell  all  his  interest  therein  to  the  complainant  for  wiUi  GH^'tn^i 
the  consideration  of  £112  10  0,  which  agreement  was  re- hiln  di  "oStTiit- 

....  i        i  i        i-  '  teriil   rtien-iii,  on 

duced   to  writ  me:,  and  is  evidenced,   by  the  bond  ol  con.  the   pimm-m  to 

fnr\\    (if  them    of 

veyance  exmbited,  dated  the  20th  of  March  1794.  1  hat  ssoo;  «n<t  ti.e  ,n<.- 
the  consideration  money  has  been  fully  paid.  The  bill  j><«ses«i<ui  ot  the 

•  «      '         '  lot   w«<  drliTyred 

further  stated,  that  Benjamin  Franklin,  brother  of  Tnomat.**  °.R<  *>1,''.a'"I 

J  *  lb«  <lrmth  pi   I  y\\\ 

afterwards  claiming  to  be  possessed  of  an  interest  in  the  fJ^J^  "„£)"„.." 
premises,  agreed  to  transfer  and  convey  the  same,  absolute-  fho?r  i^r,  w"a 
Jy,  to  the  complainant,  for  the  consideration  of  gSOO,  which  2™'^  ISfiSXi 
agreement  was  reduced  into  writing,  and  is  evidenced  by  a'^erf^aiuj?^ 
the  b,ond  of  conveyance,  exhibited,  dated  the  29th  of  July  r  ^'in' imi£<" 
1794.  That  the  consideration  money  has  been  fully  paid;  w,lr"TimosT™"- 
and  the  complainant,  ever  since  the  execution  of  the  two  of"  mtoxlea&m! 

.'-•--•.  .  .    ,  ,  That  thr   lot   v.as 

bonds  of  conve}rance,  has  been  in   the  quiet,   secure,  and  cmx^cuci  to  be 

rrt  '  sold  i>y  them  wh<-n 

unmolested  eniovment  or  the  premises.     That  Tnomas&nQ™  «  stme  of  in. 

toxicatiop.         <>c 

Benjamin  Frar>Jc!hi  are  both  since  dead,  and  that  Sarah  v-'"-n  ''"•>•  «"pro 

incapable  of  tnu>) 

Smith*  the  defendant,  is  seized  and  possessed  of  the  in-ait".'s|>"s'iusvt 

a  | >  r ire  RTeaflJ  m  • 

Iieritiince  and  legal  estate  iu  the  premises,  by  right  of  de-  ll^'J.^1"^^ 
scent,  and  as  licire:s»  at  law.  That  the  complainant  has ^>nve*^^|JJj 
frequently  applied  to  her  for  a  deed  of  conveyance  of  the  Ji','"',-^,',!,.,"! 'J,^ 
premises,  which  she  has  refused  to  execute,  and  has  in-  or u' Fein's wmnt 
stituted  actions  of  ejectment  for  (he  recovery  (»f  the  pctases-  r'pnrot^h^'im'i^ 

f  ,(  «  ji  .-•  •  r-  r  r  oility.it  <ni('!it  not 

sion  of  the  premises.  J'raycr  lor  a  specific  perhununce  of  »  H.-  n,i:,rc,-d; 
the  agreements,  and  a  deed  of  conveyance  of  the  premises,  iiv»  to, or  perimt 

'      "  S  to  t-ik<'  nr  MM 

and  for  an  injunction,  &:c.  The  answer  of  Iho  defendant  jy> -\*» 'i,r,u.»-,.'.'(t 
stated,  that  her  brother.  Juries  Franklin,  was  in  his  lifetime  i<>i  ••('  (.-round. 

-—       lur     ix- 


ccn- 


seized   and  possessed,  and  died   seized   and   possessed,  a.  •<i<1<i-.\c  the 

-I.!,T 'Ji.in  |>»id  by 

mon^st  other  real  estate,  of  the  lot  of  "-round  mentioned  in  ilin-  l"  B  F 

A  tei:::::'  T  ccia- 

the  bill,  on  the  31st  of  December  1793,  intestate,  leaving  a  ™"";<>u,{"^)  ,';,'• 
sister,  (the.  defendant,)  and  (\yo  broth ers,  Thomas  and  Ben-  p1^*; .,,'^jjU(  ^ 
in,  before  named,  and  which  two  bruthers,  and  the  defen-  J",^  „" 'ihVw- 
,  on  the  death  of  James,  became,  under  the  act  to  direct  e^^',,  hHd  *a 


(    ^SES   IN  THK  COrilT  OF   APPEALS 

180P.  .  entitled  equally  to  all  the  real  estate  of  \\ Inch 

Jumes  died  seized,    su.bje.ct  to  the   pro\iM<nis  <..rvl    rc>-u(a- 
tiuiis  mentioned  in  that  act.     That   both  her   said  bi 

in  the  habits  of  drinking  strong  liquor  to  treat  ex- 
ami  from  t!|e  time  of  tiie  ileatU  of  their  brother 
James,  being  freed  from  all  restraint,  and  having  entirely 
in  ihvir  |>O\UT  the  means  of  gratification,  and  being,  it  is 
bHieyed,  encouraged,  in  their  excesses  by  pe.rvmx  \\ho 
wished  to  obtain  |draJ)taget  over  them,  they  were  almost 
constantly  in  a  slate  of  intoxication;  and  that  vhcn  not 
actually  drunk,  they  vr»»ic  scarce  Qver,  if  ever,  free  from 
the  eflfcts  of  the  excesses  to  which  they  were  addicted, 
and  the  mental  imbecility  arising  therefrom.  That  their 
extreme  ion<!ni'bs  for  strong  liquor,  and  their  anxiety  to 
obtain  it,  al*o  rendered  them  open  to  imposition  from  any 
PC.TMMI  who  would  furnish  them  with  money  by  which  they 
could  procure  their  gratification,  however  exorbitant  the 
ierms;  and  whatever  contract  they,  or  either  of  them, 
wight  have  entered  into  for  the  sale  of  lands,  it  is  believ- 
c.1.  originated  either  from  their  being  in  a  state  of  intoxi- 
cation at  the  time,  or  from  the  solicitude  of  acquiring  mo- 
ney for  their  excesses,  as  they  had  no  occasion  to  disnc.-se 
of  any  of  their  rer.l  estate  to  supply  any  necessary  want. 
That  both  her  brothers  died  within  eight  months  after  the 
death  of  their  brother  James,  and  within  eleven  «!:. 
each  otht-r,  having  fallen  victims  to  thtir  constant  in- 

.M'UN.  That  /,'<?;/'</?//</<  died  on  the  10th,  and  Thomas 
«>n  the  £()th  of  August,  iri.'4.  That  the  lot  of  ground 

>.ned  in  the  bill,  is  situate  in  a  very  valuable  and, 
improving  part  of  Jlttltimorc  town,  and  contains  an  acre 
fi!"  -round,  and  is  believed,  by  the  best  judges,  to  be  worth 
ijpwa:  That  Jiiiuickcr  pietends  to  have  tho 

hotidn  of  ri!im-yanc<'  v*'t  forth,  but  they  are  not  admitted 
to  ha\c-  been  e\rr»tcd  by  1  «  i  bi'otl.cj  >.,  tir  cither  of  them, 
or  that  they  rtu-ivid  the  alleged  consideration;  but  if  the 
bonds  wen-  (  \ctuted,  s-he  lias  no  doubt  but  they  \\er- 
Miird  l-y  Ivr  lr.':'!.i:^  v>lun  in  a  state  of  intoxication,  or 
•when  tho  >;>le  of  trai.sactiiig  busim\s». 

thut  :.  U  of  their  ignorance  of  thq 

v;ilue  of  i  (or  the  monoy  ;ili<-^nl  to  ha\e  beci\ 

F0f  'ho  projn-tt\  i»  not  njiial  to  the  sixth  part  ».f  the 
valur  Mnuts  that  she  hag  refund  to  con- 

>Ty  the  lot  to   Iiciulcktrt  Lctuu^c  biie  vas»  untl  is  uf  oj'i- 


OS  MARYLAND.  423 

ftion,  that  she  is  not  bound  in  law  or  equity  to  convey  the 
same.  That  she  is  willing;,  and  has  ottered  to  pay  to  hi  in. 
any  sum  of  money  which  her  brother  Thomas  hath  actually 
received  from  him. 

Testimony  was  taken  and  returned  under  a  commission. 
Vhich  issued,  and  the  case  was  argued  before,  arid  submit- 
ted to,  the  chancellor. 

HANSON,  Chancellor.  The  complainant  applies  for  the 
performance  of  a  contract  made  by  a  brother  of  the  defend- 
ant, who  has  refused  on  the  ground  of  the  complainant's 
having  taken  advantage  of  a  man  whom  habitual  intoxica- 
tion had  rendered  unfit  to  manage  his  own  affairs,  and  an 
easy  prey  to  an  artful  designing  man. 

The  chancellor  conceives  that  the  privileges  of  drunken- 
ness are  pretty  well  ascertained,  and  that  they  ought  not 
to  be  extended.  Has  it  ever  been  settled  or  understood, 
that  because  a  man  is  addicted  to  strong  drink,  no  contract 
\viiich  he  makes  shall  be  binding,  Unless  he,  or  those  who 
come  after  him,  shall  think  it  eligible  to  abide  by  the  bar- 
gain? If  this  were  the  case,  a  drunkard  would  have  ad- 
vantages far  superior  to  those  which  are  enjoyed  by  the 
most  prudent^  shrewd,  sagacious  man.  For  instance,  se- 
ven years  ago  he  sold  land  for  £5  an  acre,  which  in  the 
opinion  of  witnesses  was  at  that  time  worth  £7.  It  is  now 
worth  <£20.^He  has  not  conveyed  it.  Being  sued  in  chan- 
cery, he  says  "it  is  well  known  that  I  was  every  day  drunk, 
and  therefore  the  contract  ought  not  to  stand."  The  chan- 
cellor, as  he  has  already  said,  considers  the  privilege  to  be 
well  ascertained,  and  sufficiently  extensive.  If  a  man  evi- 
dently has  procured  another  to  be  intoxicated,  in  order  that 
he  might  obtain  an  unconscionable  bargain  of  him,  and  has 
obtained  it,  this  court  will  not,  on  application,  hesitate  to 
vacate  the  contract.  But  if  a  man,  accustomed  to  strong 
drink,  and  even  to  be  intoxicated  every  dav.  but  notwith- 
standing possessed  of  reason,  and  the  power  of  reflection, 
determines,  with  all  the  deliberation  he  is  capable  of,  to  sell 
bis  property,  offers  it  repeatedly  for'sale,  at  length  sells  it 
at  the  best  price  he  can  obtain,  to  a  man,  against  whom 
there  is  not  proof  of  his  having  taken  advantage  of  tile 
lumr  of  intoxication;  if  afterwards  he  professes  himself  sa- 
tisfied with  the  bargain,  and  assigns  a  good  reason  for  it — • 
•when  the  bargain  is  clear,  explicit  and  certain— when  it 


IN  THE  COURT  Of  APPEALS 

1809.        ha"  been  fully  executed  on  the  other  side — the  chancellor 
—v~-^       cannot   think,   tha*.   under   such    circumstances   tins    court 
ou^ht  not  to  enforce  i».     II?  has  described  the  ca 
him  with  respect  to  Thoinas  Franklin*  as  appears  to  him 
from  the  proceedings.     Decreed,  that  the  defendant,  by  a 
good  deed,  to  be  acknowledged  and  recorded  according  to 
law,  give,  &.c.  to  the  complainant,  and   his  heir-,  one  un- 
divided third  part  of  the   lot  or  ground    mentioned  in  the 
bill,  and  the  bonds  from  Thomaa  and  Benjamin  Fn. 
deceased,  to  the  complainant. 

As  to  the  contractor  Btnjamin  Franklin*  the  chancellor 
is  of  opinion,  that  on  account  of  the  satisfactory  proof 
liis  imbecility,  it  oujjht  not  to  be  enforced  by  this  court; 
but  that  the  money  to  him  paid  by  the  complainant  ought 
lo  be  restored.  Dtcreed  al>o,  that  the  defendant  pay  to 
the  complainant  the  sum  of  S-300,  which  was,  it  appear?, 
paid  by  the  complainant  to  Benjamin  Frnnklin*  decea- 
and  that  upon  her  executing  and  acknowledging  the  deed; 
eby  directed,  and  (taxing  to  the  complainant,  or  bring- 
ing; into  this  court,  to  be  paid  to  him,  the  sum  of  £300* 
the  injunction  in  (hi-  cause  i«.?ued  be  dissolved;  and  that  the 
complainant  be  enjoined  to,  and  shall  deliver  to  her,  m 
permit  her  to  take  or  enjoy,  two  undivided  third  parts  of 
the  lot  or  ground  before  mentioned.  From  tnis  decree 
both  the  complainant  and  defendant  appealed^*  this 


The  cause  was  argued  before  CHASE,  Ch.  J/Poi.K, 
C-HAXAN,  Nimoi.sox,  and  EAKLE,  J.  by 

Keif  and  T.  Buchanan,  for  Reinicker;  and  by 
Martin  and  Harper,  for  Smith. 

The  counsel  for  Smith  contended,  that  the  contracts 
ought  not  to  be  decreed  to  be  specifically  performed,  be- 
cause of  ilninkrnness*  and  the  inadequacy,  of  pricf.  As 
to  the  firsr,  they  cited  2  Pou\  on  Cont.  2-26,  227.  O»- 
ritzrji/,  .1  I\  /T/,jv.  1.11,  'nolt  A.)  Cory  vk. 
Corn*  \  J'es.  19.  1  Fonbl.  68.  And  as  to  the  latter,  they 

••••/•.  nn  Coni.  ::-.  153,  K>\  J:L  .  227; 

'  'i  rfn-ltl  r.t.  -  /'«'».  1  .">.>.  Pope  vs.  Itont.i,  7 

Bro.  Par!  / '/'..•: wry,  2  /'.  1> 

Cole  vs.  Gibbon*,   3  P.    Hm*.   293.     BuIJwin  vs. 

>nl.  1  H'tf*.  2-!".  JHlorncu  <:>••  \ylfrfin<  I 

'  ./»  vs.  11'ootl,  2  f'ernon,  63*,  and 


OF  MARYLAND. 

lips  vs.  T?MC/C,  1  Fera0rt,227.  They  also  contended,  that  1809 
a  tenant  in  common  could  not  convey  less  than  his  whole 
interest  iti  the  whole  estate  which  descends  to  him  u'mter 
the  act  t>  direct  descents,  (1786,  ch.  45,)  as  under  that 
act  the  whole  estate  is  to  be  divided;  and  if  the  interest  of 
a  tenant  in  common,  in  a  particular  lot  of  ground  of  that 
estate,  has  been  sold  by  him,  the  division  could  not  be 
made;  for  it  might  be  that  where  there  were  several  lots, 
the  division  and  allotment,  the  particular  lot  which 


had  been  so  sold  might  be  assigned  to  some  other  of  the 
heirs. 

The  counsel  for  Reinicker  cited  2  Pow.  on  Cont.  152  to 
159,  144  to  145,  220,  228.    1  Pow.  on  Cont.  30.   Sugdon 
1,67.     They  also  argued,  that  it  could  not  be  said  that  a  te- 
nant, holding,  in  common  with  others,  property  in  different 
parts  of  the  state,  could  not  sell  his  interest  in  any  one  of 
the  parcels  lying  in  any  particular  place.  That  he  might 
sol!  his  whole  interest  in  the  estate,  or  his  interest  in  a  part 
only.     That  he  might  convey  his  interest  in  a  particular 
designated  property;  and  if  he  could  convey,  he  could  con- 
tract.    He  could  not  designate  a  particular  part  of  the  lot 
or  tract  of  land,  but  he  might  sell  his  interest  in  any  parti- 
cular part.     There  could  be  no  difficulty  under  the  act  to 
direct  descents,  where  a  partition  or  sale  of  the  estate  was 
directed.     The  purchaser  could  be  admitted  to  participate, 
and  might  be  pUced  in  the  situation  of  the  tenant  who  sold 
to  him.     That  if  a  judgment  was  rendered  against  a  tenant 
in  common,  it  would  not  be  contended  that  a  fieri  facias. 
could  not  be  laid  upon   his  interest  in  a  particular  part  of 
the  estate,  and  that  interest  sold. 

THE  COURT  affirmed  that  part  of  the  decree  of  the  court 
of  chancery  from  which  Reinicker  appealed,  with  costs. 
And  on  the  appeal  by  Mrs.  Smith,  the  court  reversed  that 
part  of  the  decree  which  decreed  that  she  should  pay  to 
Reinicker  §300,  without  costs  in  either  the  court  of  chan- 
cery or  this  court;  and  they  decreed,  that  on  her  executing 
the  deed  directed,  the  injunction  should  be  dissolved,  and 
that  Reinickei  be  enjoined  to,  and  should  deliver  to  her,  or 
permit  her  to  take  or  enjoy,  two  undivided  third  parts  of 
the  lot  of  ground  mentioned  in  the  proceedings. 

DEGREE  RBTfiRSED  IN  PART. 
V01.    II,  S4 


425  -ES  IN  THH  COURT  OF  APPEAL* 

BURK.  vs.  THE  STATE. 


to  Jranhington  county  court.     An  indictment, 
Containing  two  count-,  one  for  a  rape  committed  nn  the 
body  of  Catharine  Maria  Browner^  and   the  other  for  ;m 
"!  assau^»  w'ltn  ""tent  to  commit  a  rape,  on  the  same  perM.ii, 
uas  f°UN(l  >n  tne  county  court   of  Freddr'nk  against   the 
J"hdd  Pontiff  in  error,  at  February  term  1809,  and  removed,  (in 
Hi  anil  affidavit,    by  the  transmission  of  a  tran- 
iJeT.  script  of  the  record    to  ll'axhinzton  county  court.     The 
^unm«!>Vh"Vu'n?  nature  of  the  indictment,  and  the  facts  upon  which  the 

may  b"  «w  >m  and  ..  c    •'  .        ,  iv    •       .1 

eh.npd  npoiicMK-  questions  ot   law  were  raised,  sufficiently  appear  in  the 

ol  f'  ic  f>unt«»nljr.       .    .  c  ,,   ..  .  .     «  ... 

to  the  rrciu.km  <>r  opinion  ot  the  court  below,  delivered  by 

the  oth-r  J 


n  Bt*  CHAVA??,  Ch.  J.  This  ca3e  now  stands  on  a  motion  in 
SnHrilnairpiJnwil',tarrest  °^  ju  lament.  The  indictment  contains  two  counts 
cnl'pu.rT'chaii'on."  —  tne  ^rst  charging  a  rape,  and  tlie  other  an  assault  with 

g»t';5?**«"1  to  commit  a  ™Pe- 

niomn^o^i'hiSi  The  prisoner  was  arraigned  upon  the  whole  indictment, 
»h?n  "c':eTcn  *."c  am'  pleaded  generally,  not  guilty.  The  attorney  for  the 
CTwk  °"  state  then  elected  to  proceed  against  him  on  \\svfirsl  count 

At  to  the  man-          .1         •      ••     .  ,     ..        .     ~ 

n.-rof  aw»rdini;»'n  the  intlictmcnt,  and  the  jury  were   accordingly  sworn, 

venire     for    mm  i        i  i  i          /• 

rnomng  uieimi-n  and  charged  upon  the  first  count  alone,  and   fonnu   mm 

in  criminal   catei,        ..  _.  . 

capital.  guilty  ot  the  oftcnce  therein  alles^d.  particularly  confining 

At  to  Ihr  join-    ,     . 

d-r  uruffdicet  in  their  verdict,  bv  the  expressions  of  it,  to  the  first  cot'nt; 

rnminiu        cam. 

•ndthc  i..ii,der..fon  the  second  cowit  no  verdict  was  given. 

cau«t   <-l    aetiout 

Fifteen  of  the  jurors  returned  were  peremptorily  chal- 
lenged by  the  prisoner  when  put  upon  his  trial,  and  nine 
sworn,  which  exhausted  the  original  pannel.  (>n  motion 
of  the  attorney  for  the  state,  an  order  to  the  sherifl'to  sum- 
mon three  talesmen,  was  atCarded  by  the  court,  two  ot 
•whom  were  sworn,  and  one  challenged.  An  order  to  sum- 
mon one  talesman  was  then  awarded  on  the  application  of 
the  attorney  for  the  state,  and  the  person  summoned, 
sworn,  which  made  up  the  legal  number  of  twelve  sworn 
on  the  j'iry. 

There  arc  three  questions  for  the  consideration  of  the 
court,  growing  out  of  the  indictment  and  proceedings  there- 
on, and  the  reasons  assigned  in  arrest  of  jmlguirnt. 

/7n/.  Whether  the  indictment,  containing  two  counts, 
one  charging  a/e/ow/,  and  the  other  a  miv.letneanor,  is  ra- 
dically bad? 

Secondly  .  Whether,  after  the  party  had  pleaded  gf  ne- 
rally  to  the  indictment,  the  jury  were  legally  sworn  and 


charged  upon  one  of  the  counts  only  to  the  exclusion  of  the        1809 
other.  And 

Thirdly.  Whether,  when  nine  jurors  were  sworn,  and 
the  rest  of  the  original  punnel  exhausted  by  peremptory 
challenges,  the  court  could  legally  award  an  order  to  the 
sheriff  to  summon  only  three  talesmen;  and  again,  when 
eleven  were  sworn,  to  summon  but  one? 

In  the  examination  of  these  questions,  the  order  in  which 
they  are  stated  will  be  inverted;  and  the  manner  of  supply- 
ing the  jurors  by  talesmen,  be  first  considered. 

It  cannot  be  doubted,  that  in  this  state,  a  tales  de  circum~ 
stantibus  may  be  awarded  in  capital  cases;  such  is  the 
uniform  practipe,  and  such  are  the  provisions  of  the  statute 
of  35  Henry  VIII.  ch.  6.  But  it  is  contended  that  as 
three  were  wanted  in  the  first  instance  to  supply  the  defi- 
ciency, and,  as  the  prisoner,  (having  challenged  only  fifteen,) 
was  entitled  to  five  more  peremptory  challenges,  a  less 
number  than  eight  cpuld  not  be  applied  for  by  the  prose- 
cut3r,  or  awarded  by  the  court.  And  the  samp  ground  is 
taken  against  the  second  order.  But  this  idea  is  unsup- 
ported by  authority.  Several  authorities  have  indeed  been 
cited  and  relied  on  in  aid  of  the  objection  made  to  the 
Dumber  of  talesmeri  awarded,  which,  when  examined,  only 
go  to  show,  that  courts  may,  if  they  please,  to  prevent  the 
delay  that  might  be  occasioned  by  the  defendant's  chal- 
lenges, award  a  greater  number  than  was  on  the  original 
pannelj  and  this  is  admitted.  But  no  case  has  been  cited, 
or  authority  referred  to,  which  denies  the  power  of  courts 
to  award  o.nly  so  many  talesn\en,  as  would,  with  those 
sworn,  make  up  the  number  of  twelve;  or  in  support  of  the 
position,  that  a  less  number  cannot  be  awarded  than  would 
be  sufficient  to  make  up  the  deficiency,  after  the  defen- 
dant has  gone  through  with  his  challenges;  or  in  other 
words,  that  as  the  number  deficient,  and  the  remaining  pe- 
remptory challenges  to,  which  the  party  was  entitled, 
amounted  together  to  eight,  not  less  than  eight  could  le- 
gally have  been  awarded  in  the  first  instance.  Nor  is  the 
idea  strengthened  by  the  reason  of  the  ca,se,  for  if  so  ma- 
ny must  always  be  awarded  as  will  leave  a  sufficient  num- 
ber to  supply  the  deficiency,  after  the  defendant  has  com- 
pleted his  challenges,  it  would  be  impossible  to  ascertain 
the  number  proper  to  be  summoned;  for  besides  peremp- 
tory challenges,  a  prUgaer  is  entitled  to  challenges  for 


CASES  IN  THE  COURT  OF  AITK  A 1  > 

1809.  cause,  without  number.  And  it  is  not  to  supply  deficien- 
cies occasioned  by  peremptory  ihalliinires  only,  that  tales- 
men  are  awarded:  but  deficit  ncies,  octa-iom-d  in  rriniin:il 
trials  by  any  other  cause,  mu>t  be  made  up  by  ta'.esmeii  a>  iu 
civil  cases,  in  which  peremptory  challenges  are  not  allowed* 
Thorn  is  no  principle  laid  down  more  broadly  in  the 
books,  than  that  the  award  of  talesmen  must  be  repeated 
until  the  legal  number  of  twelve  is  completed,  the  subse- 
quent talcs  being  always  for  a  less  number  than  the  for- 
mer; and  this  precludes  the  idea  that  the  award  must  al- 
ways, in  the  first  instance,  be  of  so  many  as  to  leave 
enough  to  supply  the  deficiency,  after  the  party  has  com- 
pleted his  challenges;  for  in  that  case,  there  could  never 
be  a  second  tales  ordered,  [tis  true  that  in  capital  cases, 
courts  may,  if  they  please,  award  an  order  to  the  s-l.eiiir 
to  summon  more  than  the  precise  number  necessary  to  r-Mp- 
ply  the  deficiency,  though  there  is  no  obligation  on  them 
to  do  so;  and  if,  in  this  case,  the  prisoner,  or  his  connst-l, 
had  requested  a  greater  number  to  be  gammoned,  he  would 
have  been  gratified.  But  an  order  for  three  only  in  the 
first  instance,  and  one  in  the  second,  was  prayed  by  the 
attorney  for  the  state,  ami  each  prayer  and  order  an 
ced  in  at  the  time  by  the  counsel  for  the  accused.  The 
second  tales  was  for  a  less  number  than  the  first,  and  each 
was  for  the  precise  number  necessary,  with  those  sworn, 
to  make  up  the  legal  number  of  twelve,  and  in  strictm --.s 
of  law,  that  is  all  that  is  required  in  such  case;  and  as  fur 
as  this  court  are  informed,  is  in  strict  conformity  with  the 
practice  throughout  the  state. 

The  second  qvcsticn,  "whether,  afier  the  prisoner  had 
pleaded  generally  to  the  indictment,  the  jury  were  legally 
sworn  and  charged  on  one  of  the  counts  onlyr"  is  fully  re- 
solved in  Young  vs  The.  Aing,  S  T.  Ji.  ICG;  in  which  it  is 
eaid,  "that  if  aq  indictment  contains  several  counts  for  se- 
parate ofl'ences,  the  court  may  quash  it  befotc  the  party 
has  pleaded,  or  the  jury  are  charged;  but  if  it  should  not 
be  discovered  until  after  the  defendant  has  pleaded,  or  the 
jury  are  charged,  the  judge  may  put  the  prosecutor  to  elect 
on  which  charge  he  will  proceed." 

That  case  goes  much  farther  than  the  present,  for  in 
that  it  is  laid  down,  that  not  only  after  the  party  hus  plead- 
ed generally  to  the  indictment,  but  after  the  jury  ;nc 
awoin  upon  the  whole  issue,  for  they  are  uc>er 


OF  MARYLAND.  429 

fore  they  are  sworn,  the  court  may  makefile  prosecutor  J809. 
•elect  on  which  count  he  will  proceed,  and  in  this  case 
though  the  attorney  for  the  state  did  not  elect  to  proceed 
on  the  first  count  alone,  until  after  the  prisoner  had  plead- 
ed, vet  it  was  done  before  the  jury  were  either  charged  or 
sworn;  and  if  the  position  taken  in  the  case  referred  to  is 
tenable,  the  proceedings  on  that  part  of  the  case  before  the 
court  are  correct. 

The  next  and  only  question  remaining  to  be  considered, 
is,  "whether  the  indictment  containing  two  counts,  one 
charging  a.  felony  and  the  other  a  misdemeanor ',  is  substan- 
tially vicious,"  as  is  contended  for  on  the  part  of  the  pri- 
son e,r? 

The  exception  iaken  to  the  indictment  is  attempted  to 
be  supported  by  assimilating  the  proceedings  in  criminal 
trials,  to  those  in  civil  cases,  which  is  not  correct  to  the 
extent  contended  for. 

If  entire  damages  be  assessed  on  a  declaration  contain- 
ing several  counts,  any  one  of  which  is  bad,  it  is  error; 
but  there  is  no  principle  better  established,  than  that  if 
a  general  verdict  of  guilty  to  be  found  on  an  indictment 
containing  several  counts,  it  is  sufficient,  if  one  is  good, 
although  all  the  rest  are  bud. 

11  is  objected,  that  a  felony  and  a  misdemeanor  can  no 
tnore  be  charged  in  the  same  indictment  than  assumpsit 
and  tort  can  be  joined  in  the  same  declaration.  Jjut  the 
reasons  given  in  the  books,  why  certain  different  causes  of 
action  may  not  be  joined  in  the  same  declaration  are,  that 
the  process  is  different;  that  they  do  not  admit  of  the  same 
general  plea,  and  are  not  followed  by  the  same  judgment. 
And  here  again  the  analogy,  contended  for  between  the 
proceedings  in  criminal  and  civil  cases,  does  not  hold;  for 
it  has  been  long  settled;  that  an  indictment  may  charge 
several  felonies  of  different  grades,  and  requiring  different; 
legal  judgments,  as  oUences  clergyable,  and  offences  not 
clergyable,  such  as  murder  and  manslaughter,  bur-larv 
and  larceny,  &c.  and  that  the  party  may  be  acquitted  of 
one  of  the  offences,  charged,  and  convicted  «,f  tiie  other, 
nnd  receive  judgment  accordingly;  and  if  so,  there  is  no 
substantial  reason  why  a  rape,  and  an  assault  with  intent 
ty  commit  a  rape,  may  not  be  charged  in  the  same  indict- 
ment; for,  leaving  the  act  of  1TD3  out  of  consideration,  the 
legal  judgments  required  on  two  such  counts  are  not  roore 
dissimilar,  than  on  two  counts,  one  charging  burglary  and 


430  CAM>   IN  Tin:  UUKT  OF  APPEAL- 

1809.         the  other  larceny,  &c.     And  it  is  laid  down  in  lirwn  T •« 

>»  ton,  319,  and  others,  that  whenever  the  same  plea  mav  bp 

The  suie 

pleadeil,    anil  the    same  judgment  gi\en    on   two    count*, 

tln-\  m;»\  U-  joined  in  the  same  declaration. 

Now  apply  that  rule  to  the  indictment  in  this  case,  and 
the  objection  fall-;  for  in  this  state  the  le^al  pnxc-s  on 
each  of  the  offences  charged  is  the  same;  thry  admit  of  th« 
same  general  plea,  and  by  the  act  of  assembly  1793,  ch. 
57,  sect.  10,  the  same  jmlgnu-iu  ma\  l»e  pronounced. 

It  has  been  further  urged,  that  a  felony  and  a  misdemeanor 
cannot  be  laid  in  the  same  indictment,  because  they  re» 
quire  difi'erent  modes  of  trial;  on  one  charge  the  party  ac- 
cused having  a  right  of  challenge,  and  on  the  other  not; 
and  also  being  subject  to  arraignment  on  one,  and  not  on, 
the  other.  But  neither  the  arraigning  a  man  on  an  in- 
dictment for  a  misdemeanor,  nor  indulging  him  in  a  pe« 
remptory  challenge,  is  error  after  verdict. 

That  objection,  therefore,  fails  in  reason,  a*  it  relates 
to  the  misdemeanor,  nor  does  it  appear  to  have  any  more 
\ui-ht  as  it  applies  to  the  charge  of  felony;  for  the  party 
accused  having  no  right  to  peremptory  challenges  on  the 
count  for  misdemeanor,  could  not,  by  the  addition  of  that 
count,  be  in  any  manner  prejudiced  in  his  challenges,  or 
otherwise,  on  the  count  for  felony,  beiore  the  act  of  1802, 
ch.  GO. 

It  is  true,  that  in  this  state,  under  that  act  of  assembly, 
a  party,  indicted  for  a  misdemeanor,  is  entitled  to  a  pan- 
n » 1  of  twenty  jurors,  fi.ur  of  whcm  he  may  strike  out:  but 
that  afioids  no  stronger  argument  against  the  uniting 
a  felony  ai'il  a  misdemeanor  in  the  same  indictment,  than 
the  right  which  every  one,  charged  with  a  capital  oflei.re, 
lias  to  twenty  peremptory  challenges,  does  to  the  joining 
•  •i;il  capita!  felonies  in  the  same  indictment]  and  it  is  a 
nettled  principle,  that  diflereiit/e/ow't*  may  be  charged  in 
the  same  indictment,  and  though  they  might  confound  the 
prisoner  in  his  deiVnce,  or  prejudice  him  in  his  challenges; 
for  he  might  have  reason  to  object  to  a  juryman's  trying 
him  on  one  of  the  counts,  whom  he  would  wish  to.be  sworn 
mi  the  others;  yet  it  is  no  objection  to  the  indictment  after 
verdict.  Why  then  should  the  addition  of  a  count  for  a 
misdemeanor  vitiate  an  indictment  charging  a  IVlonyr  But 
to  prevent  pitrjudicu  to  prisoners  in  their  challenges, 


OF  MARYLAND.  431 

and  confusion  in  their  defence,  courts  may,  and  perhaps  1809. 
ought,  before  the  jury  are  charged,  to  quash  indictments 
containing  separate  and  distinct  felonies,  or  to  make  the 
prosecutor  elect  on  which  count  he  will  proceed;  so  for  the 
same  reason,  and  particularly  since  the  act  of  1802,  r.h. 
69,  there  would  be  a  propriety  iti  pursuing  the  same  rule 
in  relation  to  indictments  charging  a  felony  and  misde- 
meanor. 

If,  as  it  is  alleged,  no  case  of  an  indictment  charging  a 
felony  and  a  misdemeanor,  is  to  be  found  in  the,  books,  it  af- 
fords no  argument  against  the  correctness  of  such  an  in- 
dictment; the  case  may  never  have  arisen*  or  the  princi- 
ple may  never  have  been  questioned,  and  therefore  not 
reported. 

And  if  this  is  a  question  of  first  impression,  it  must  be 
decided  on  principles  of  analogy  to  other  cases;  and  thus 
tested,  the  indictment  does  not  appear  to  be  defective;  not 
on  account  of  the  modes  of  trial  incases  of  felony  and 
misdemeanor  being  different,  for  it  is  no  objection,  after 
verdict,  that  a  traverser  on  an  indictment  for  a  misdemea- 
nor was  arraigned,  or  indulged  with  a  peremptory  chal- 
lenge. 

In  2  East's  Crown  Law,  1G23  and  1029,  2  Hawkins's 
Plens  of  the  Crown,  625,  and  Kelyng's  Reports,  29,  it  is 
laid  down  a?  settled  law,  that  if  the  special  circumstances 
of  the  case  be  set  forth  in  an  indictment  for  an  offence  laid 
as  felony,  and  the  defendant  foand  guilty  generally,  and 
afterwards  the  court  should  be  of  opinion  that  the  fact 
does  not  amount  to  felony,  but  only  to  a  trespass,  judg- 
ment may  be  given  as  for  a  trespass  only. 

In  such  a  case,  the  party  accused  would  be  arraigned, 
and  have  his  challenge,  and  yet  the  oftence  contained  in 
the  indictment  only  a  trespass  or  misdemeanor,  though 
charged  as  a  felony;  and  llie  principles  so  established,  may 
perhaps  be  applied  with  force  to  the  present  question  in 
all  its  parts;  for  if  a  misdemeanor  may  be  charged  as  a  fe- 
lony, and  punished  as  a  misdemeanor,  why  may  net  a  fe- 
lony and  a  misdemear*-;'  be  laid  in  the  same  indictment, 
and  the  party  be  acquitted  of  the  felonv,  and  found  guilty 
of  the  misdemeanor,  or  e  converse?  Not  on  account  of 
the  party  being  liable  to  be  prejudiced  in  his  challenges, 
or  the  jury  perplexed  in  the  application  of  the  testimony; 
for  the  same  objection  might  be  urged,  and  with  more 


433  CA-K-INTIF  "  0!>  API'KVLS 


1809.  force,  to  an  indictment  di.ir-iii'j;  separate  and  distinct  fe- 
lonies; and  jet  such  indictments  aiv  held  to  ho  good,  and 
not  because  the  different  counts  would  require,  different 
judgqpnty  I  >r  different  fr/onics  may  be  laid  in  the 
same  indictment,  which  are  differently  punished,  and  re- 
quire different  legal  judgments,  such  a*  innnier  and  man- 
slaughter, b.urglary,  and  larceny,  &c.  Moreover,  an  indict- 
ment charging  a  raj>e,  and  an  assault  with  an  intent  to 
commit  a  rape,  is  lew  objectionable  here  than  in  England) 
for  in  this  state,  under  the  act  of  1793,  cli,  57,  *.  10,  a 
conviction  of  cither  offence  may  be  followed  by  the  r-aiuc: 
legal  judgment. 

In  this  particular  case  the  two  offences  charged  in  the 
indictment  are  connected  together,  and  the  misdemeanor 
merged  in  the  felony.  No  evidence  could  have  been  a 
sible  on  one  count,  that  M-as  not  applicable  to  (be  other, 
\vhich  £Uinls  it  against  the  objection,.  that  the  jury  might 
be  confused  in  tin-  application  of  testimony  of  a  ditliMvnt 
nature,  and  goes  to  show  the  compatibility  of  tiie  two 
countsj  or,  if  the.  mi>demeaiu.r  is  to  be  considered  as  a 
separate  and  distinct  offence,  committed  at  auiil'eirnt 
time,  and  not  a  constituent  part  of  the  felony  charged,  it 
does  not  alter  the  case. 

The  great  strictness  observed  in  criminal  prosecutions, 
grows  out  of  the  benevolent  principle,  that  every  prisoner 
should  have  a  fair  and  impartial  trial;  and  this  the  prisoner 
in  the  present  case  has  had. 

The  attorney  for  the  state,  as  he  had  a  right  to  do,  aban- 
!    the  second  count,   ;ind   elected  to  proceed   on   the 
first,  upon   which  the  jury  were   accordingly   sworn  and 
charged.  There  was  no  application  to  quash  the  indictment, 
nor  any  objection  made  at  the  trial,  to  the  form  of  proceed- 
ing; but  the  prisoner  chose  to  take  his  chance  before  the 
jury  on  the  charge  of  felony,  to  which  the  trial  was  exclu- 
sively confined.      lie   was  not,  nor  could  he,  in  any   man- 
ner ha\e   been   prejudiced  by   the  addition    of  the   second 
count,     which    bein^    abandoned    before    the    jury    were. 
iiiM])f!;i'i\f  a->  if  tin-  ,  ip.rul  jury  had  found 
the  indictment  a  true  bill  as  to  the  first  count,  and  indnr- 
•  >nd;  whu-h  they  might  have  done, 

and  the  indictment  have  been  good  as  to  the  count  f.nn.I 
a  true  bill.  He  had,  under  this  mode  of  proceeding 
every  privilege  and  advantage  which  be  could  have  had  if 


OF  MARYLAND.  433 

the  indictment  had  contained  only  the  count  on  which  he       1809. 
was  tried;  aud  now   to  arrest  the  judgment  would  be  a 
perversion  of  justice. 

Upon  the  whole,  in  the  opinion  of  the  court,  the  reasons 
assigned  in  arrest  of  judgment  are  unsupported. 

Judgme.nl  was  entered  on  the  verdict,  sentencing  the 
prisoner  to  be  hung,  &c.  Sentence  of  death  was  pro- 
nounced by  the  chief  judge;  and  afterwards  the  prisoner 
removed  the  indictment  and  proceedings  to  this  court  by 
a  writ  of  error. 

The  cause  was  argued  before  CHASE,  Ch.  J.  POLK,  NI- 
CHOLSON, and  KAULE,  J. 

Martin,  Taney,  and  Latvrenrc,  for  the  Plaintiff  in  error, 
raised  tlie  same  objections  which  were  urged  in  the  court 
below  on  the  motion  in  arrest  of  judgment. 

On  the  first  objection  they  contended,  that  felony  and 
misdemeanor  were  different  offences,  and  ought  not  to  be 
found  in  the  same  indictment.     That  under  those  counts, 
different  modes  of  trial  were  required.  The  prisoner  must 
be  arraigned  in  the  first,  and  not  in  the  other;  he  must  be 
present  at  the  trial  of  one,  and  he  need  not  be  at  the  trial 
of  the  other.     Judgment  might  be  passed  against  him  on 
one,  when  he  was  not  present:  but  in  the  other,  it  could  not 
be  done  except  he  was  present,     [n  the  one,   he  might 
challenge  peremptorily  to  the  number  of  20  jurors;  but  in 
the  other,  he  had  no  such  right.    In  the  last,  he  might  strike 
out  four  from  the  pannel  of  jurors,  and  so  might  the  attor- 
ney for  the  state;  but  in  the   former,  the  attorney  for  the 
state  could  not  challenge  or  strike  out  from  the  pannel. 
That  the  judgments  were  different;  in  one,  the  life  of  the 
party  might  be  in  jeopardy:  in  the  other,  it  would  not  be. 
That  the  benefit  of  clergy  might  be  demanded  in  the  one, 
and  not  in  the  other.    They  cited  4  B!k.  Com.  216,  375. 
2  tide's  P.  C.  1 73.     2  Hawk.  39,  ch.  25,  s.  59.     Crown  C. 
C.  111.     Brown  vs.  Dickson,  1  T.  R.  276,     The  King  vs. 
Roberts,  Curthew,  £26.  Rogers  vs.  Cook,  Ihid  235    Young 
vs.  The.  King,  3  T.  R.  98,  per  Lord  Kenyan,  on  the  fourth 
objection.   1  Bac.  .#&.  tit.  Actions  in  General,  (C.)  Dal&ton 
vs.Janson,  1  Ld.  Raym. 58.  S.  C.  1  Salk.  10.     Court. n y 
vs.  Collet,  1  Lti  Raym.  272.   Howard  vs.  /iankes,  2  Burr. 
1114.     Gilb.  Hist.  C.  P.  6.      The  King  vs. 
VOL    u  55 


CASES  IN  THE  COURT  OF  APPEALS 

1809  I  rcnfris,  366.  Mast  vs.  Goodxon,  5  9TU*.  5.'>4.  Dickon 
vs.  Clifton,  ZfHls.  319.  Su-ithin  vs.  Jlncent,  Ibid  227. 
Jtage  vs.  firoimrrlf,  3  /,«,'.  99.  2  //flirt,  r/i.  25,  s46,  97.  /?« 
15.  Jlilke*,  4  Burr.  5527.  /?e.r  cs.  Pewtress,  2  *V/ra.  1026. 
Hanlw.  205.  TV  Ai/??  rs.  Straiten,  Doitgl.  240,  241. 
7?cr  t-J.  Heldhouse,  Cowp.  S-25.  The  King  vs.  ll'hcat- 
fcy,  1  II.  Blk.  Rep.  275.  The  King  vs.  Mention,  2  7x/. 
fiaym.  1572.  S.  C.  2  .Sfro.  870.  Rex  vs  Benfield,  2  Burf. 
980,984.  The  King  vs.  Sitllcy,  1  Siderf.  168.  2  //HI/*. 
cA.  25,  ».  62.  77»«  5/a/e  t'«.  Itinsfgold,  (iti  the  general  court, 
April  term,  1792.)  Hex  vs.  Cross,  1  £d.  Itaym.  711.  2 
//«/f,  172.  Rex  vs.  Jf'estbeer,  2  S/rcr.  1133.  LeuchC.L. 
15.  2  £a»f»  C.  L.  1023,  1028,  1031.  4  Blk.  Com.  221. 
Martyn  Page's  case,  Cro.  Car.  532.  As  to  the  right  and  na- 
ture of  the  benefit  of  clergy,  they  cited  2  Hawk.  ch.  33,  s  20, 
23,25,112,114,115,  121,  128,  129,  132.  Stat.  1  £dic. 
VI.  cA.  14,  ».  5.  5/ftf.  5  .^nw,  cA.  6.  4  //<TJ.  VII,  ch.  15. 
2//arr.  £n/.  52.  Cwldington  vs.  tfilkins.  Hob.  67,  81. 
Searlevs.  William*  3>td  294.  5  5/a/e  TVia/Jt,  168.  /caci 
C.  /,.  360.  2  7/i/»-^.  eft.  56,  s.  1,  10,  14.  //a/f,  220,  251  j 
and  2  Hawk.  ch.  47,  *.  6. 

On  the  second  objection  they  contended,  that  the  counsel 
for  the  state  could  not  elect  on  what  count  he  would  pro- 
secute; but  he  must  prosecute  on  the  case  before  the  court. 
They  cited  4  Blk.  Com.  339,  575.  2  hoick.  59,  c/i.  25,  sf 
97.  Rochel  vs.  Sledle,  Hardres*  Rep.  \  66.  1  Blk.  Com. 
142.  Rosse's  case,  3  Leon.  83.  2  flotf.  .#&.  722,  />/.  19. 
Graves  vs.  Morleg,  3  Lev.  55.  1  Tnsf.  227.  Hooper  vs. 
Shepherd,  2  5Sfra.  1089.  ReXvs.Pewiress,  Ibid  1026.  Gi/- 
dart  vs.  Rogers,  (in  the  general  court,  October  term,  1786.) 
Young  vs.  The  King,  3  T.  R.  106,  per  Bitllr.r,  J.  2  /far/*. 
C//.27,  s.  92.  Fifz.M.  tit.  Discontinuance,  14,  35.  Tiro. 
./?&.  tit.  Discontinuance  of  Process,  62,  pi.  55.  Clerke  v». 
Clerkc,  Cro.  EHz.  622.  Sampson  vs.  Tothil,  ft  al  1  Siderf. 
S25.  2  //<»/•&.  rh.  38,  *.  3.  CoA«T«  Ent.  57,  372,  579, 
S81,  585,  387,  390.  Kant.  43,  412.  Rex  vs.  Hoy  re,  4 
Purr.  2084,  2085.  Tremtnne,  287.  TV  King  vs.  Dow- 
Kn,  5  T.  R.  51 1.  Fo^r'*  case,  9  Coke,  63.  2  Hawk.  cti. 
47,  i.  5,  6,  8, 9, 1 1, 14;  and  Fulmerston  va.  Steward,  Plow. 
J09. 
On  the  third  objection,  as  to  the  tale*,  they  cited  / 

fjni  tarn  vs. ,  1  Lev.  223.      The  Queen  vs.  Banks,  C 

Mod.  246.     Gree  rs.  Sharp,  liii  265.      2  //ouvt  ch.  41. 


OF  MARYLAND. 

A.  12.  DenlawiPs  case,  10  Cd&e,  105.  /?ro.  Jib.  tit.  Oc/o 
TWes,  6,  7,  8,  11,  15,  16,  19.  Vin.  Ab.  tit.  Trial,  521. 
2  /AmJt.  c/i.  41,  s.  12,  13.  2  Hale,  266.  JTw/erf  Staff* 
us.  Burr,  1  .ewrr'.s  TVt'a/,  420.  God.  204.  77ie  SVa/e  «*. 
Qrndorff',  (in  the  general  court,  October  term,  1783.)  //u/- 
/on  us.  //MM,  Cro.  Eliz.  849,  850.  7"Ae  Queen  vs.  The  In- 
habitants of  Stretford,  2  Ld.  Raum.  1170.  TJie  Kingvs* 
W  heat  ley,  1  JK  /fl/£.  /?ep.  275.  2  /fawA:.  c/t.  27,  s.  105. 
Ibidch.  25,  s,  97;  and  Rex  vs.  Withes,  4  Burr.  2527. 

Johnson,  (Attorney  General,)  contra,  on  the  first  objec- 
tion, cited  Young  vs.  The  King,  3  T.  R.  98.  Holmes^ 
Case,  Cro.  Car,  376.  S.  C.  Sir  ffm.  /OHM,  351.  The 
£ing  vs.  Joiner,  Kelyng's  Rep.  29.  The  act  of  1795, 
cA.  57,  s.  10.  J?rown  vs.  Dickson,  1  7".  jff.  266.  Dickon 
vs.  Clifton,  2  mis.  319.  2  £a**'«  C.  Z.  1023,  1029j 
and  2  Hawk.  525. 

On  the  second  objection  —  Rex  vs.  Benfieldy  2  .Bwrr.  980; 
and  Young  vs.  The  King,  3  T.  R.  106. 

On  the  third  objection—  The  Slat.  35  Hen.  VIII.  cA.  8. 
Denbawd's  case,  10  Co&e,  103,  The  act  of  1798,  ch.  94.; 
imd  4  ^/A,  Com.  354. 

JUDGMENT   AFFIRMED. 


435 


1809 


NORFOLK'S  Ex'r.  de  son  torf,  vs.  GANTT. 


JUNE 


ERROR  to  Calvert  County  Court.  An  action  of  debt 
was  brought  on  a  single  bill,  by  the  defendant  in  error,  Lt^Tb^&S 
against  James  Norfolk  in  his  life-time,  to  which  he  ap-  ?,jueJ"ona°n"«t^J 
peared  and  pleaded  payment.  His  death  was  afterwards  (thereVin'gno'S 
suggested,  and  a  summons  issued  for  the  plaintiff  in  error,  min^«iato"ro°f*h« 

i  i     i    r      j   ii  t-          decea«t-dO   to  ap- 

83  executor  «e  «on  ww,  to  appear  and  defend  the  action,  pevtoradMUM 
who  beiu«j  summoned,  appeared,  and  afterwards  confessed     wh«re  an  w 

cutor  </c  *on  fort, 

the  action,  and    that  the  debt  demanded  was  due  to  the  blill<?:  '«mmonedf 

applied  to  an  »«- 

defendant  in  error,    together  with  a  sum  as  damage!  and  "ol1  ,  °f     «»eut 

brogrht     against 

costs.     Upon  which  an  auditor  was  appointed-  to  ascertain 

the  sum   for  which  judgment  should  be   rendered,  accor- 

ding  to  the    act  of  1798,   ch.  101,  sub  ch.  8,  s.  9.      The  , 

auditor  repotted,  that  it  did  not  appear  by  the  records  ftf^SSS?1*/*^ 

the  orphans    court  of  the  county  that  any  administration  m'ntMll.houidud£ 

had  been  granted  on  the  estate  of  the  deceased,  so  that  lie  ^nl'^d  "fuie 

f»»SCU,     ffC      HVfUf- 

dinc:  to  the  ace  of  17Qn,  en.  101,  tub  ch.  8,  s,  9,  T).i$  ippointment  of  auditor  was  afterward-  stricken 
out  by  the  county  court,  and  a  .juilRiiuTit  wa»  rendered  on  the  confession  above  mcnuoned,  for  the 
debt  aud  costs,  de  bnnis  tettatorii,  si  non  debonit  prtfrtit  a>lt>  cost»«  Lnor  U-UJg  brought,  tUe  iudj- 
raeui  »AJ  reverted  bj  \k*  court  ol' 


ombe  death  ot 


"nd 

the  BC« 


CASK-  IN  Tin:  CWRT  OK  APPEALS 

1809.  could  not  say  what  a--rt-.  if  any,  were  in  the  hands  of  the 
plainlifi'  in  error.  '1  lie  record  >tatr-,  that  tlie  auditor, 
vho  IKK!  hern  appointed,  on  refusing  to  ait,  v;<-  nderrd 
to  be  strut- k  out,  and  anothn-  j»-i«i.n  i.tnl  in  his 

place.  After  which,  on  motion  of  the  defendant  in  «-nor, 
it  was  ordered  by  the  court,  that  the  appointment  of  audi- 
tor so  made  be  struck  out,  and  on  his  prayr  that  il;e 
court  would  "enter  judgment  on  the  confession"  of  the 
plaintiff  in  error,  "so  as  aforesaid  made  in  the  plra  afi>i«'- 
said,"  the  court  entered  judgment  against  the  plaintiff  in 
error,  for  t!>e  debt  and  damages  and  costs,  tit  lonix  f<*(u- 
toris,  si  non  de  bonis  projiriis  as  to  the  costs.  To  re\>  i-c 
which  judgment  the  present  writ  of  error  was  brought. 

The  cau«e    was   argued    at  June   term    1808,    before 
TILGHMAN,  PotK,  and  Ht'PHANAN,  J.  andwa>  rc.u^iiecl  at 
the  present  term  before  CHASE,  Ch.  J.  POLK,  Bcc  i<  > 
NICHOLSON,  and  EARLK,  J. 

JC«i/,  and  Johnson  (Attorney  General,)  for  the  plaintiff 
in  error,  contended  that  there  was  no  pihity  in  law  or 
otherwise  between  an  executor  de  son  tort,  and  the  t\> 
cd,  and  he  could  not  regularly  be  summoned  and  made  a 
party.  The  act  of  1785,  ch.  80,  does  not  justify  it.  An 
executor  dc  son  tort  can  only  be  resorted  to  by  an  original 
action  against  him.  There  can  be  no  judgment  again->t 
him  but  of  assets  proved  to  have  come  to  his  hands.  The 
act  of  1798,  ch.  101,  directing  the  appointment  of  an  au- 
ditor, does  not  take  in  the  case  of  an  executor  de  son  t<>rt. 
It  only  relates  to  cases  where  letters  testamentary  or  of 
administration  have  legitimately  i&eued.  It  i*  by  no  : 
clear,  that  confession  of  judgment  by  an  executor  de  son 
tori  would  be  correct,  if  he  admitted  a»et>,  provided  the 
action  was  not  originally  brought  against  him.  The  o.iut 
could  not  give  judgment  for  a  portion  of  the  assets  n. 
such  an  executor.  Here  the  court  entered  judgment  lor 
the.  debt  and  damages  conliv-t •<;.  am!  c  -:-,  to  !>»•  le\i<d  c.f 
the  goods  of  the  deceased,  if  the  executor  df  son  tori  had 
so  much  in  his  hands;  and  if  not,  then  the  costs  to  be  le- 
vied of  the  goods  of  the  executor.  This  is  not  a 
and  correct  judgment.  A  judgment  against  a  vn.n»|ul 
executor  ahould  be  df  boniv  propnis  for  the  amount  of  asr 
ftets  charged  and  proved  in  his  huod-,  Imt  theie  (an  !.••  no 
judgment  against  him  of  a-sds  yuunUo  UL<.. 


OF  MARYLAND.  43? 

against  a  rightful  executor.  Upon  the  death  of  James  1809. 
Aor/b#>-,  instead  of  making  the  executor  tic  son  tort  a  par- 
ty, he  should  have  been  proceeded  against  by  a  new  ac- 
tion. Under  the  act  of  1785,  ch.  80.  an  executor  lie  son 
tort,  not  being  a  representative  of  the  deceased,  there 
could  be  no  continuity  of  the  proceedings  against  him;  and 
that  act  never  meant  to  embrace  a  wrong  doer;  it  intended 
to  provide  only  for  the  legal  party  being  made  plaintiff  or 
defendant  in  place  of  the  deceased.  The  making  an  exe- 
cutor dc  son  tori  a  party,  may  be  likened  to  the  case  of  an 
ejectment  where  the  defendant  dies,  and  a  person  enter* 
into  possession  who  has  no  right;  and  it  will  not  be  con- 
tended that  such  person  could  be  made  a  party  in  the 
place  of  the  deceased  defendant?  There  may  be  a  right- 
ful and  wrongful  executor  of  the  same  person.  Does  the 
act  of  assembly  contemplate  that  the  wrongful  executor 
may  be  made  a  party,  and  not  the  proper  executor?  Sup- 
pose, after  the  death  of  James  Norfolk,  three  persons  had 
each  taken  a  horse,  the  property  of  the  deceased,  could 
all  three  be  brought  into  court,  and  be  made  defendants  in 
the  place  of  the  deceased?  Though  each  might  take  a 
horse,  yet  they  were  not  bound  for  each  other.  There 
can  be  no  hardship  in  this  case,  as  the  plaintiff  below 
might  have  administered  on  the  estate  of  the  deceased,  if 
there  was  no  legal  administration.  The  judgment  is  ma- 
nifestly erroneous;  and  if  the  executor  dc  sun  tort  could 
be  made  a  party  under  the  act  of  1785,  the  judgment 
should  have  been  tie  bonis  propriis,  and  not  quundo  accide- 
rint.  The  court  below  entered  the  judgment,  although 
the  executor  de  son  tort  (lid  not  confess  that  he  had  assets. 
He  only  confessed  the  sum  due,  and  did  not  admit  that  h'ei 
had  assets.  The  act  of  1798,  ch.  101,  was  made  a  pre- 
text for  the  appointment  of  an  auditor,  although  that  act 
\vas  made  to  protect  rightful  executors,  so  that  the  assets 
might  be  apportioned.  The  court  nevertheless  struck  out 
their  appointment  of  an  auditor,  and  entered  judgment 
upon  the  confession.  An  executor  de  son  tort  is  not  af- 
fected by  the  act  of  1785,  ch.  80;  if  he  is,  he  is  equally 
affected  by  the  act  of  1798,  ch.  101.  If  he  could  be  le- 
gally made  a  party,  the  judgment  could  not  be  entered 
against  him,  but  in  pursuance  of  the  act  of  1798.  The 
proceedings  being  clearly  erroneous,  the  judgment  must 
fce  reversed.. 


438  CAST  s  IN  Tin:  COURT  OF  APPEALS 

1S09  Afagtiider,  for  the  Defendant  in  error.     It  has  been  con* 

tended  that  the  ji'djiment  of  the  court  below  must  be  re- 
vri-i-d.  because  it  i-  u-ain-t  an  executor  de  son  tort,  who 
i1  i-  -aid  cannot  be  made  a  paiiy,  under  the  act  of  ITS.1;, 
c't.  8,').  to  tiie  original  action.  The  convitnts*  of  this 
idea  \\iil  be  (pirstioned;  but  to  obtam  a  reversal  of  the 
;  t-nt,  something  more  is  necessary  to  be  shown.  U 
is  necessary  to  prove,  not  only  that  the  action  cannot  be 
continued  against  an  executor  de  son  tori,  but  also  that  he 
can  r.vail  him** •!!"  of  the  objection  in  a  court  of  error,  and. 
after  i-.e  i\.  --»  d  judgment  in  the  court  below. 

1.  Before  the  act  of  1785,  the  death  of  either  party 
abated  the  suit.  Upon  the  death  of  the  defendant,  the  pla'm- 
lift'  was  obliged  to  proceed  tie  nov».  The  inconvenience 
of  this  v.as  felt,  and  to  remedy  it,  was  the  evident  intnit 
nf  tl-.e  legislature  in  making  the  act  of  1785,  ch.  80.  \\iicic 
it  is  declared  that  no  action  shall  abate  by  the  death  of 
ihe  defendant,  but  the  executor,  administrator,  or  "other 
proper  person  to  defend,"  shall  be  made  a  party.  If  an 
executor  dt  son  tort  cannot  be  made  a  party  defendant  to 
the  original  action,  what  meaning  will  be  affixed  to  these 
vords  of  the  law,  * 'other  proper  person  to  defend?"  The 
•words  unquestionably  include  executors  de  son  tort,  who 
ure  responsible  to  the  plaintiff  on  account  of  the  asseN  in 
their  hamls,  and  who  are  proper  persons  to  defend  the 
original  action  under  the  law  of  1785;  because,  before  the 
passage  of  that  law  they  were  liable  in  an  original  action. 
The  intention  of  the  legislature  unquestionably  was,  that 
the  old  suit  should  be  continued  against  aHV  person  against 
•whom  a  new  action  could  be  instituted;  and  that  executorf 
de  son  tort  may  be  made  parties  to  the  original  suit,  is  evi- 
dent, not  only  from  the  intention  of  the  legislature,  but 
the  words  of  the  Inw.  Indeed,  these  words,  "other  proper 
j.i  i -nil  to  defend,"  seem  to  have  been  introduced  e.r  abun- 
dant i  cnnfrla,  and  to  pi  event  the  possibility  of  an  abate* 
ment  of  the  oripMi!  action,  if  ilx-rc  can  be  found  ai.\ 
son.  who,  ha\in^  in  his  liamU  a--ct>  of  the  original  defen- 
dant. i>.  U>  the  amount  of  them,  responsible  to  the  ciedi- 
EM-I y  person  wim  takes  possession  of  the  assets  of 
a  deceased  dcbtur,  is,  in  respect  to  creditors,  the  execu- 
tor: and  vtheih»T  tlu>  po»»ession  of  tbcra  has  been  rightful  I  j 
f,r  vii'ii^fiilly  acquired,  are  n  .1-  «-\<-(  utors  to  the 

aaiount  of  those  a>;ct*,  to  the  creditors.     It  k  no  defence 


OF  MARYLAND.  439 

by  ^  roan  who  has  seized  upon  the  fund  for  payment  of  1809 
debts  due  from  a  deceased  person  in  actions  by  creditors, 
that  his  possession  of  them  is  not  legal.  'I  he  creditors  are 
not  bound  to  enquire  whether  the  possession  is  rightful  or 
wrongful.  The  plaintiff  in  error  would  not  have  been  al- 
lowed, in  the  court  below,  to  avail  himself  of  such  a  de- 
fence. It  is  true  that  an  executor  de  son  tort  cannot  be 
made  a  plaintiff  in  the  original  action;  because  he  has  no 
right  to  demand  the  debt,  and  before  the  act  of  1785,  he 
could  not  have  brought  an  action  for  the  recovery  of  it. 
Under  the  act  of  1785,  any  person  can  be  made  a  party 
defendant  against  whom  the  plaintiff  in  the  action  could 
have  proceeded  in  an  original  suit,  to  be  brought  before  the 
passage  of  that  act.  It  is  asked,  how  is  a  plaintiff  to  pro- 
ceed if  there  be  several  executors  de  son  tort — can  he  make 
only  one  of  them,  or  is  he  at  liberty  to  make  all  of  them, 
parties  to  the  original  suit?  An  answer  to  this  is  not  ne- 
cessary. It  is  sufficient  to  say,  that  he  may  make  as  many 
of  them  parties  to  the  original  suit  as  he  could  to  a  second 
action  to  be  brought  by  him  upon  the  abatement  oF  the  first. 
But  if  this  be  not  a  sound  construction  of  the  act  of  as- 
sembly, yet  it  remains  to  be  enquired, 

2.  Whether  the  plaintiff  in  error  is  not  too  late  with  his 
objection?  It  may  be  true  that  an  executor  de  son  tort  is 
not  a  proper  person  to  defend  the  original  action,  and  there- 
fore is  not  to  be  made  a  party  to  it,  yet  it  is  apprehended, 
that  this  defence  ought  to  have  been  made  in  the  court  be- 
low; and  having  been  waived  there,  cannot  be  relied  upon 
In  eiror.  Leave  is  given  to  the  plaintiff  to  make  a  pioper 
party,  and  because  he  suggests  to  the  court  that  the  plain- 
tiff" in  error  was  a  proper  person  to  defend  the  suit,  a  sum' 
jnons  is  directed  to  him  to  appear  and  show  cause  why  the 
suit  should  not  be  continued  against  him.  It  was  not  in- 
cumbent upon  the  plaintiff  below  to  show  for  what  reason 
the  suit  might  be  continued  against  him — in  what  relation 
Tie  stood  to  the  debtor,  or  to  the  fund;  being  suggested  t» 
be  a  proper  person  to  be  made  a  party  to  the  suit,  he  is 
required  to  appear  and  state  his  objections  to  a  judgment 
being  recovered  against  him.  If  there  were  not  in  his  hamls 
assets  sufficient  to  discharge  the  plaintiff's  claim  in  due 
course  of  administration,  this  might  be  shown;  and  if  plead- 
ed, the  plaintiff  could  only  recover  against  him  upon  proof 
of  assets.  But  if  this  is  not  pleaded,  the  judgment  would 


440  CASES  IN  THR  O  AP1M1ALS 

1809        of  courne  be  for  the  amount  of  the  phiutiflTs  cla;  ;    B    ' 

if  ant  a  |  :  -  >M  to  In-  nu:le  a  party  to  the  -nit,  this 

to  hare  been  stated  ti»  the  court,  either  at  ihe  time 
of  Ins  appe  ir.in. •(•.  or  by  plea,  and  whether  he  was  or  was 
Dot,  be.iug;  in  some  iiMM-un-  ;»  question  of  Tart,  would  have 
heen  examined,  where  alone  it  could  be  r\aini:ied,  in  the 
court  below.  Instead,  however,  of  making  this  dc!' 
or  of  showing  anv  cau*e  why  he  should  not  be  made  a 

.  he  h.ts  i-iinte»sed  judgment,  and  thereby  admits  liim- 
self  to  have  been  a  proper  pei  t  \\i>;>:n  tlie  original 

«uit  was  to  be  continued.      Having,    by    hi-,  confession  of 
judgment,  acknowledged  himself  to  be  the   proper  p 
to  defend  tlie  suit,  the  olijpction,  now  .so  strenuou>!y  ur^eit 
agaiust  an  affirmance  of  the  judgment,  cannot  be  heard  in 
this  court.     It  is  true,  indeed,  that  in  the    summons  which 
wa>  issued  a-.^iinst  him,    and  whioh  the  clerk  has  uiu 
snrilv  coj/ied   into  tli-  reronl,  he  in  stvlnl  i-  ci  utor  (If  .ton 
tort.      Whether  this  proceeded   from  any  kmnvli'if^. 

'I  by  the  clerk  thai  I> •!(••(>  te-taineniary  had  not  been 
granted  to  him,  or  from  his  ignorance  that  a  rightful  e\»'v-utor 
and  an  executor  ilc  son  tori  were  difierent  characters,  does 
not  appear,  and  is  wholly  ummport;«nt.  The  appellation 
given  to  him  in  the  summons  cannot  be  resorted  to  in  pi  oof 
of  his  beiii1'  an  executor  <!?  .ion  f(,rf.  The  summons  does 

O 

Hot  belong  to  the  record — it  makes  no  part  of  the.  pK •.. 
and  was  not  necessary  to  have  been  is.sued.  Any  incor- 
rectness in  it  cannot  prejudice  the  plaintifl'below.  It  mi^hi 
have  been  directed  to  any  other  persnn — might  have  stated 
John  Xokd  as  the  proper  person  to  appear  to  the  suit;  ami 
might  have  mistatcd  the  names  of  the  ordinal  pai  tie-,  and 
the  nature  of  the  action;  yet  if  the  plaimili'  in  error  chose 
to  appear  to  the  suit,  and  in  place  of  shou  inj$  cause  b*;- 
iow  why  judgment  should  not  be  given  against  him,  to 
confess  judgment,  he  cannot  after.vanU  come  into  a  court 
of  error  and  claim  a  reversal  of  tli-.-  judgment,  because  of 
r.nv  f.-.Ne  description,  or  blunders  of  the  clerk  in  the 
summons.  If  A  bring  an  action  a^;ainr>t  IJ,  and  his 
v  tit  state  him  to  be  executor  of  C,  yet  lie  m.iv  afterwards 
:  liuv,  him  for  a  debt  due  from  himself,  and  after 
n  judgment  by  confession,  or  upon  verdict,  in  the  court  be- 
low, it  would  be  strange  it  in  error  his  counsel  urged  rh;»t 
he  was  sued  as  executor  for  a  claim  due  from  him  self. 
"Whether  the  plumlilVm  error  was  a  rightful  IT  wrongful 


OF  MARYLAND. 

etncutor,  is  a  question  which  cannot  be  examined  here/  1809. 
It  is  a  question  of  fact.  The  counsel  for  the  plaintiff  in 
error  contend  that  this  court  is  competent  to  decide  it, 
and  they  produce  for  their  testimony  the  subpena,  which 
they  say  is  conclusive  evidence  of  the  fact.  The  plaintill" 
in  error  is  precluded  by  his  confession  of  judgment  in  the 
court  below  from  denying  himself  to  have  been  the  proper 
person  to  be  mado  a  party  to  the  action,  and  in  this  court 
must  be  considered  a*  the  executor  of  the  original  defend- 
ant. 

5.  Objection  has  been  made  to  the  form  in  which  the 
judgment  is  stated.     It  seems,  however,  to  be  such  a  judg- 
ment as  must  be  recovered  against  an  executor.     The 
plaintiff  in  error  made  no  defence  in  the  court  below.     He 
could  not  gainsay  the  debt,  and  therefore  the  sum  due  to 
the  plaintiff  below  is  first  ascertained.     While  a  provision 
of  the  act  of  1798,  ch.  101,  was  in  force,  he  was  not  bound 
to  plead  plenc  adminisiruvit,  and  refusing  to  admit  a  suf* 
fiency  of  assets,  the  court  were  obliged  to  appoint  an  audi- 
tor.    Thus  far  unquestionably  the  -proceedings  were  regu- 
lar, and  the   record    is  correct.     But    the  appointment   of 
auditor  is  afterwards  stricken  out  and  a  judgment  is  enter- 
ed, which  the  record  states  to  be  given   upon  the  "confes- 
sion of  the  defendant  in  the  plea  aforesaid."     Herein,  all 
the  error  lies.     It   has  been  said  that  the  confession  did 
Hot  wan-ant  the  judgment — that  the   confession  was,  that 
he  could  not  gainsay  the  debt,   and  the  court,  by  giving 
judgment    "upon   his   confession  in    the  plea  aforesaid,'* 
have  undertaken  to  say  that  he  had   assets,   without  any 
proof  before  them;  for   his  confession  was  a  denial  of  it. 
This  however  seems  to  be  quarrelling  with  forms.     The 
record,  if  correctly  understood,  will  certainly  show  that 
the  judgment  was  properly  entered.     The  pica  aforesai </, 
fhowever  strange  an  expression  it  may  be,  as  here  intro- 
duced,) relates  to  the  reference  to  an  auditor  to  ascertain 
assets.     Plene    administravit,    though    not   pleaded,  be- 
came unnecessary  by  the  act  of  1798,  c/t  101,  is  supposed 
to  be  the  defendant's  plea,  and  is  certainly  the   only  plea 
on  which  he  ever  pretended  to  rely.     The   confession  spo- 
'ken   of  is  a  confession  with  respect  to   that  plea,  and  of  a 
sufficiency  of  assets.     It  is  a  confession  made  bv  the  de- 
fendant after  the  appointment  of  an  auditor,  and  in  cense- 
queuce  of  which  the  appointment  was   stricken  out,  and, 
VOL.  is.  56 


413  CASES  IK  THE  COURT  OF  APPEALS 

1809  judgment  entered  according  to  it.  In  a  fe\v  words,  the 
defendant  at  first  admitted  the  debt  to  be  due,  but  would 
not  confess  assets.  In  consequence  the  sum  was  at 
tuined,  but  an  auditor  was  appointed  to  ascertain  the 
amount  uf  a*>ets.  The  party  afterwards  confesses  there; 
were  assets  sufficient,  and  in  confcequence  the  appointment 
of  auditor  was  stricken  out,  and  upon  liis  own  confession 
of  a  sufficiency  of  assets  in  his  hands  to  discharge  the  debt, 
the  court  entered  against  him  the  judgment,  which  in  all 
such  cases  is  given.  It  is  said  to  have  been  given  upon 
motion  of  the  plaintiff.  But  this  is  the  form  of  enter- 
ing all  judgments  by  confession.  The  whole  proceeding 
are  regular,  unless,  because  an  auditor  had  once  been  ap- 
pointed to  ascertain  the  amount  of  assets,  it  was  not  in  the 
power  of  the  parties  to  take  the  subject  out  of  his  htnd«, 
and  ascertain,  by  their  own  confession,  the  fact  which  it 
was  the  sole  purpose  by  the  reference  to  determine.  The 
forms  of  record*  alight  indeed  be  more  correctly  and  ele- 

O  " 

gantly  expressed,  but  these  are  forms  to  which  we  arc 
roost  accustomed,  and  have  in  them  sense  enough  to  pre- 
vent the  reversal  of  ajudgment,  to  which  the  consent  uf 
the  party  was  had  in  the  court  below. 

THE  COVHT  considered  that  the  summons  for  the  exe- 
cutor de  ton  tort  to  appear  and  defend  the   action, 
regularly,  and  that  the  executor  de  son  tori  could  be  made 
a  party  to  the  action;   but  that  the   entry  of  the  judgment 
erroneous. 

JUDGMENT  KfcVERSED. 


JUNE.  BEAHD  vs.  H 


in  nreutiniti      APPEAL  from  R(dtimore  County  Courh     Action  on  the 

Corn  TUMI.. n  to 

take  t*»tiuioi>r,  ii  case  against  a  common  carrier  for  negligence,   &.c.     The 

it    n..t     urevuary  °   . 

th«t  thrr,,,,,,,,,.,,.  general  issue  pleaded.     A  communion  by  consent   issued 

burn    •lionlil    mp-  ° 

pumi  •  clerk  t0  London,  for  the  purpose  of  obtaining  testimony,  and  \\;i-> 
returned,  with  the  testimony  taken  under  it.  At  the  trial 
in  the  county  court,  the  plaintiff,  (now  appellee,)  offered 
in  evidence  the  commission  and  the  testimony,  to  which 
evidence  the  defendant,  (now  appellant,)  objected,  on  the 
ground  that  it  did  not  appear  that  the  commissioners,  nam- 
ed in  the  commission,  appointed  a  clerk,  liut  the  count/ 


OF  MARYLAND.  443 

court,  [//.  Riilgchii  Ch.  J.]  overruled  the  objection.  The        I80& 
defendant  excented.     Verdict  and  judgment  for  the  plain-      ^""^ * 

•>        °  Hammond 

lift',  and  the  defendant  appealed,  to  this  court.  Hi^n» 

The   cause    was   argued  before   CHASK,  Ch.  J.    POLK, 
BUCHANA.V,  NICHOLSON,  and  EAHLK,  J.  by 

W.  Dorset/ 1  for  the  Appellant;  and  by 
£ricet  for  the  Appellee. 

JUDGMENT  AFFIRMED. 


HAMMOND  vs.  HIGGINS,  et  ux.  JUNTB. 

APPEAL  from  Frederick  County  Court.     This  was  anac-    in  »n  action  of 

ilowera  judgment 

tarn  of  Dower^  to  which  the  defendant,  (now  appellant,)  .»•«,»  ^^mlt's 
appeared,  and  confessed  judgment,  which  was  entered  in  rto^v."r  f!1"1^-  '^Jg 
favour  of  the  demandants,  (now  appellees,)  for  the  dower  ^V^™  •££*£ 
of  the  wife,  of  the  third  part  of  two  tracts  of  land  called,  ^%^rraai"i<i 
&c.  to  hold  to  them  in  severalty  by  metes  and  bounds;  and  »«"•«£  '*^tutJS 
on  the  prayer  of  the  demandants,  a  writ  of  habere  facias  ™££*  ["^n^t 
seisinam  was  awarded  and  issued,  to  cause  them  to  have  mag^TiTU'stT. 
full  seizin  of  the  third  part  of  the  lands,  §tc.  which  writ  jJJdgnJST***  ^ 

i-       i        •  i  i    .1        j  ,i        i         i  i    •  I  'Unnaecs  and  co»U 

accordingly  issued,  and  the  dower  in  the  lands  were  laid  was  reversed 

oft'  and  assigned  by  a  jury,   and  delivered  by   the  sheriff 

to  the  demandants,  and  on  return  thereof  being  made  to. 

the  county  court,  the  demandants  prayed  judgment*  "as 

well  for  their  damages  sustained  by  occasion  of  the  detea- 

iion  of  the  dower  of  the  said  S.  in  the  lands  aforesaid,  as 

also  for  their  costs  and  charges  by  them  laid  out  and  ex- 

pended," &c.     The  county  court  entered  judgment  in  fa- 

vour of  the  demandants  against  the  defendant,  for  "-one 

penny  current  money,  for  their  damages  sustained  by  oc- 

casion of  the  detention  of  the  dower  aforesaid,  as  also  nine- 

ty five  pounds  and  one  penny  curreot  money,,  adjudged  by 

the  court  to  tlse  demandants  for  their  costs  and  charges  by 

them  laid  out  and  expended,"  &c.     From  which  judgment 

the  defendant  appealed  to  this  court. 

The  cause    was  argued  before   CHASE,,  Ch.  J.  POLS, 
BUCHANAN,  NICHOLSON,  and  EARLE,  J. 


^  for  the  Appellant,  contended  that  the   whole  of 
the  proceedings,   aftef  the  judgment  for  dowof  and  the 


CASES  IN  TIIK  cor'.rr  OF  ATMT.AI.- 

awarding   the  writ   of  Iinbe  re  far  ins  stisinnm  was   erroiic- 
(ni«.        No  judgment     lor    iliioi:m<-s    and    costs    could     be 
entered    after  the  term   at  which  the   ; 
was  rendered.     The  form  of  the    writ   of  seizin  \\as  er- 
roneous.     It  should  go  to  (he  sheriff' only,  and  hi*  is  to  he 
aided    by  no  person    unless  it   is  necessai \  to  lay  out  the 
land,  when  he  can   call  on  the  surveyor   of  the  com,;;.    ;» 
run  it  out.     Precedents  of  wri's  of  habcre  facias  mi 
may  be  found  in  Cliffs  Eiif.  298.  Itasl.  Enl  255.  1  Kick. 
C.  P.  2%;   and  2  Harr.  Ent.  697.     The   proj.rr   return 
by  the  sheriff' should  be,  "I  have  delivered  seizin  by  metes 
and  bounds,"  &.c.  Ratl.  Enl.  355.     The  f<-rm  of  tl-.i-  v.iit 
used  in  the  case  before  the  court,  ig  that  of  a  writ  of  par- 
tition, and  nut  of  hubere  facias  xeisinam.     Tbe  judgment 
in  partition  is  interlocutory,  but  in  dower  it  is  final.    Her* 
the  judgment  being  by  confession,   there  could  be   no  da- 
m.-fz-'s  and  costs  even   if  the  application  had  been  made 
therefor  at  the  proper  term. 

Shaft/" and  Tamy,  for  the  Appellees. 

THE  COURT  considered  (hat  the  judgment  of  the  county 
court,  as  to  the  damages  and  cu*ts  recovered,  \\as  errone- 
ous. 

JUDGMENT  RKVF.RSED, 


JuVE.  TOMLINSON  VS. 

intro.pi»««j?.r.  ERROR  to  JHIcgcmij  County-  Court.  An  action  of  tres- 
t^.vh'i  t'lri-'w1.  pass  quarc  clausum  fregit,  was  brought  by  (he  ddVmlant 
BMlr*1^1™"/'.'.'!  jn  error,  against  the  plaintiff'  in  error,  for  bre;ikir.^  and  «-n- 
"*  ''in-iu.i.<i  tering  the  close  of  the  de^ndant  in  error,  culled  Ti 


tin  trart  i-:i'lerf   T 

,iih  'h- 
" 


.  . 

,iih  'h-b;-  ^olhin,  lying  in  JUl€g«aty  county.      Ihe  detendant 


c^i  •'  h»t?lx"ii  in  the  court  below  pleaded,  1.  Not  Gvi/ry,  and  2.  Juytificuti- 
«in>h  !•««'  <rjci  0;j  that  /ocws  tn  ana  was  a  close  ol  laiid  called  Grute'n  A 

•  hi-  pttirtiff  U.ciit  I 

:!„   ,,.„..;  Camp,  and  the  freehold  of  ,/y/w  trains,  and  that  the  dtfen- 

•  ml  In-  «.M>  t<HH(  * 

K?U  '".'e  ^','<i  "n.'.t  ('ant»  as  "'**  servant,  and  by  his   license,  entered,  &.c.  ge- 
•.'"irn'i-'hy  oeraJ  replication,  and    issues   were  joined.     There   v  «  n- 
Thr    '[i.l<r.ni!l«unni  other  replications   to  the  last    plea,  whith  were  dumurred 
V"""''"''  '  *  to»  but  as  they  were  not  noticed   by  the  court,  they    are 

il.  ., 

h»-  •  •  '  i  '••  i  No.  S3S1  .—  ffeW,  thui  It  wm«  ucl  mcr»i«r»  fi.rfcimio  | 


OF  MARYLAND.  445 

omitted.   A  warrant  of  rcsurvey  issued,  and  the  lands  call-        1609. 
ed  Trouble  for  Nothing  and    Grains  Sugar  Camp,  and      v~~"v~ ' 

J  Tomliniou 

the  place  v\l,ere  the  trespass  was  alleged  to  have  been  com-  £ 

tnitted,  as  also  lots  No.  5550  and  No.  5551,  were  located 
on  the  plots  returned.  The  defendant  took  defence  for 
Grate's  Sugar  Camp,  as  including  Trouble  for  Nothing, 
to  which  there  was  no  counterlocation  made  on  the  plots. 

1.  At  the  trial  the  defendant   read  in  evidence  a  grant 
of  the  land  called  Grate's  Sugar  Camp,  to  John  Mains,  on. 
the  1st  of  March  1802,  "beginning  at  the  end  of  the  second 
Jine  of  lot  No.  5351,  and  running  thence  N  27  E  46  per- 
ches, S  26  W  90  perches,  S  62  W  50  perches,  thence  by 
a  straight  line  to  the  beginning,"  £c.     The  plaintiff  then 
prayed  the  opinion  of  the  court,  and  their  direction  to  the 
jury,  that  it  is  incumbent  upon   the  defendant  to   produce 
patents  of  lots  No.  3550  and  3551,  to  prove  the  beginning 
and  location  of  Grate's  Sugar  Camp  to  be  correct;  to  which 
direction  and  opinion  being  given,  the  defendant  objected, 
and  prayed  the  court  to  direct  the  jury,  that  as   the  plain- 
lift' has  located   the  lots  No.  3350  and  5551,    and  Grate's 
Sugar  Camp,  upon  the  plots,  including  the  place  where 
the  trespass  is  Located  as  committed,  it  is  not  necessary 
for  the  defendant  to  produce  patents  for  lots  No.  3350  and 
S551,  to  prove  the  location  of  those  lots,  and  the  beginning 
of  Grate's  Sugar  Camp,     Kut  the  county  court,  [Clagett 
Ch.  JJ  refused  to  give  the  direction  prayed  by  the    defen- 
dant; and  gave  the  direction  prayed  by  the  plain ti if.     The 
defendant  exc.epted. 

2.  The  defendant  then  prayed  the  opinion   of  (he  court, 
and  their  direction  to  the  jury,  that  it  is  incumbent  on  the 
plaintiff,  in  order  to  support  his  action,  to  prove  a  title  to 
Trouble  for  Nothing,  or  to  prove  an  actual  possession  by 
ioclosures  located  upon  the  plots      "Which  opinion  and  di- 
rection the  court  refused  to  give.     The  defendant  exempted. 
Verdict  and  judgment  for  the  plaintiff,  and  the  defendant 
brought  a  writ  of  error  to  this  court. 

The  cause  was  argued  at  the  last  June  term  before  PoLfy 
BUCHANAN,  NICHOLSON,  and  GAXTT,  J. 

Johnxon,  (Attorney  General)  and  Perry,  for  the  Plain- 
lift1' in  error,  cited  Dofkerytt  Afaynanl,  1  Han.  <V  Zjtlien, 
209.  Jarred  vs  ft'cut,  J  Hurr.  $  Johns.  501. 

T,  JJuckunan  argued  for  the  Defendant  in  error. 

Curia,  adv.  wit. 


CA.-:>  IN   niKOM  RT  OF  APIT  AI.s 

THF.  CouHT,  at  thi*  term,  disagreed  wi»b  <he  court  below 
in  the  opinion  c\pi«--r.l  in  UK-  fir  at  bill   of  exception 
concurred    with  them    io  that   expressed  in  the  atcimd  bill 
of  exceptions. 

JL'IKiMKNT  REVERSED,   AND  PROCKPENDO 


JrvK.  HAMMOND  vs  SAPH  •-  ••  i  ->s. 

wHft>rm«!iH  AppEAf.  from  the  Court  of  Chancery.  The  bill  of  the 
!!».  '^".''i-,.'.'.'!!  complainant,  (now  appellee,)  filed  on  the  3d  of  September 
X\oj™!h-.0!i',liM  18UC,  slated,  that  in  the  year  1796  he  purchased  of  the 
£ei",  I-.M  '»i  «  defendant,  (now  appellant.)  a  inilt-ncnL  in  Sinnc-.ii- 

i.a.-tel  Ui,  ,     .      ' 

»«.i.-.  IM..C  »»<i  county,  at  and  lor  .£  100   money  paid   down  at  the  time, 

i    '  •  ill 

ei  «<-"/r<7,  in  and  obtained  possession:  and  not  doubting  but  that  a  clear 

tfcr      i--.uru)        of 

f^r^t.  »i»i  ««  title  could  IK-  »iven  to  him  bv  the  defendant,   he  imi 

Htf    tunin    hrniik  J 

;I)A(  the  property,  and  expended  in  impro\ements  £\  20.     That 
*    '!  ."findiii"    aftei  \vards  that  the   defendant  had   no  ti^lu  to  the 

••  i'-< 

^u'Xn11"""!1'  r//  .  la"^»  ne  applie<l  to  him  to  repay  the  money  emended,  and 
main   von.i   c/-to  rt>funj  t|,aj  whicli  he  had  received;  which  tl«e  defendant 

JftCmtn;    ,       "I          »H* 

A?tLVth'l-roi'K  ',•  •  refused  to  do;  but  again  practising  another   ileceplion  and 
MMrltl^iMMm  iiupo.-ilion,  he  agreed  to  sell  and  convey  to  the  complainant* 

el  A'm/j/rVv,   »a»  •  •  •         .•  r    i  •  i      i  •  i          i 

fanned  ii  .-.m  v,r-  in  coiisiderat  ion  of  the  premises,  and  the  money  paid  and 
v«n?t'y  of  .lot  T*»'«  expended  I'm-  and  on  the   iiiill  scut,  800  acres  of  land 

«y,  wiMcii  ate  in  lluurlion  county,  in  the  state  of  Kentucky,  and  ac- 
t,Tr"»'     ii.viu.,:.  cordinuh  executed  a  deed  therefor,  daled  the  10th  of  Fe- 

i    w«    •  »»  rouo- 

u.-.i  ijruary  ITl'O,  in  which  the  land  i»  described  4'as  all  that  i.art 


.- 

(larke  an  J  ." 

\»!^  nui  Till  '  i,,  °'  a  Uact  ol  l'ai'':c'  w  '•IM*>  contained  within  the  metes  and 
ll'.'i"''  j  s"r,;.c'i"h'.7  t>»ii»ds  of  a  tract  of  laud,  containing  in  the  whole  OLU 
J^'J1;.'  .--res,  bi^inning  for  the  said  part  at  the  beginning  trees 

;  il.e  \\!iole  tract,  and  running"  <^-c.  describing  the  part  by 
-  and  bounds,  'Situate,  lying  and  being,  in  the  state  of 
'  '       U  A'r/'Jutl.;/,    in  the  county   of  ttuv.rbon^   and   on  the  inu'm, 
br:  r,  containing   b()(J  acres,"  &c.     Th;U  the 

complainant  made  preparation,  and  Uid  muo>e  to  the  state 
of  AYn/f'fA-J/,  ami  went  in  >e:irch  of  the  land  in  Bovrbon 
nity,  nnd  a-'cordin^  to  the  description  contained  in  the 
decil,  hut  t.»  iiis  'jrcat  surprise  no  such  land  was  there  ta 
he  foui.  iiad  any  kind  ot  il.iim 

»•>  title;  t!:at  he    cais-fd    '.;..  tt>  be   examined,  and 

the  result  \\ur,  tlmt  tlic  •vompluiuuut  owued  uu  laud  in  that 


OF  MAHYLAND.  417 

county.  That  he  called  on  the  defendant,  ami  informed  1800 
him  of  the  premises,  and  requested  him  to  refund  the  sum 
of  £280,  the  consideration  of  the  purchase  of  the  land,  and 
to  make  him  compensation  for  the  loss  of  time,  &c;  but  the 
defendant  refused  to  do  either.  Prayer,  that  the  mo- 
ney be  decreed  to  be  repaid,  and  for  further  relief,  &c. 
The  answer  of  the  defendant  denied  that  he  had  no  title 
to  the  mill-seat.  That  at  the  instance  and  request  of  the 
complainant,  he  consented  to  give  him  his  right  in  800 
acres  of  land  in  Kentutky,  for  the  mill  seat  and  improve- 
ments, the  complainant  alleging  that  the  lands  the  defendant 
was  to  give  him  his  right  in,  were  good  in  quality,  and  that 
J.  D,  his  brother-in-law  then  in  Ksniii-ky  knew  the  lands, 
and  had  informed  him  of  their  quality.  The  defendant 
showed  his  title  in  the  lands  to  the  complainant,  being  pa- 
tented to  Richard  Ridgely,  esquire,  on  the  2:3d  of  Novem- 
ber 1T90,  and  conveyed  to  the  defendant  by  deed  dated 
the  3d  of  November  1793,  and  duly  recorded,  &c.  That 
the  patent  for  the  land  was  granted  before  the  adoption  of 
Kentucky  as  a  state  in  the  union;  and  when  the  warrants 
were  granted  for  the  land,  for  which  the  patent  issned,  the 
land  lay  in  fflrginia;  and  in  Bourbon  county.  That  since 
that  time  Kentucky  has  become  a  state,  and  the  county  of 
Bourbon  has  been  divided,  and  two  new  counties  have  been 
erected,  called  Clarke  and  Mason  counties,  and  that  the 
land  lays  in  those  counties  He  denies  all  fraud,  &c.  The 
grant  for  the  land,  as  exhibited,  is  dated  the  3d  of  No- 
vember 1700,  and  was  issued  by  the  governor  of  the  state 
of  Virginia  to  Richard  Ridgeh},  and  the  land  is  therein 
described  to  be  a  tract  or  parcel  of  land  containing  61 34, 
acres,  lying  and  being  in  the  county  of  Bourbon^  on  the 
main  branch  of  Licking,  £c.  Commissions  issued  and 
testimony  was  taken  thereunder. 

HANSON,  Chancellor,  (June  term  1805.)  It  is  evident 
that  the  defendant  was  satisfied  the  first  contract  made 
with  the  complainant  ought  by  him,  as  an  honest  man,  to 
be  rescinded}  and  that  the  complainant  had  sustained  a 
grievous  disappointment.  This  is  an  important  considera- 
tion in  the  cause.  Well  then,  to  do  justice  to  the  com- 
plainant, it  was  incumbent  on  the  defendant  to  refund  the 
purchase  money,  and  price  of  the  improvements,  with  inte- 
rest. But  instead  of  doiug  this,  he  proposes  to  coavey  a 


(  A  3ES  IN  TIIK  COURT  OV  \rr\:  VLS 

1809         Iru^c  (ract  of  land  in  Btarfort«ounty,  iu  /.  The 

complainant  accepts  the  oiler,  but  is  ajain  disappoint. -.1. 
It  is  i- l«-a i-  that  the  defendant's  hind,  if  any  lie  has  erf  the 
place  or  near  the  place,  &c.  does  not  agree  with  the  de- 
scription. //  /a  not  in  /iourbon  county.  Says  the  coun- 
sel there  are  two  descriptions,  and  if  one  is  answered,  it 
is  sufficient.  This  i.s  indeed  the  rule  in  so:ne  ca-.cs.  Il  is 
a  rule  in  favour  of  grantees.  But  in  a  case  like  the  pre- 
sent, that  is  to  say,  with  respect  to  bargainees,  the  rule  is 
rever^r;}.  \Vh:rt!  If  a  imn  agrees  to  procure  me  ahorse 
17  hands  liijjh,  and  of  a  bright  bay  colour,  will  it  be  suffi- 
cient for  him  to  bring  me  a  horse  of  a  bright  bay  colour  on- 
ly 15  hands  high?  It  is  at  my  option  whether  I  will  take 
the  horse  or  not. 

The  contract  appears  to  be  for  800  acres  of  land  in 
Bourbon  county,  on  the  main  branch  of  Licking.  Sup- 
pose then  the  defendant  to  have  land  on  Licking  but  not 
in  Bourbon  county,  is  it  conceivable  that  be  i  -.vith 

liis  contract   by  conveying   this   land?     Alt!   but  If" 
county  once  contained  that  land,  but  on  a  division    of  the 
county,  the  land  constitutes  part  of  J/«-vrm  county.      ! 
in  vain  to  argue  this  .vay.     Is  it  necessary  to  mention  the 
first  rules  of  equity  with  respect  to  contracts   forbidding 
all  trick,  finesse  or  deception,  or  even    misunderstanding? 
In  short,  it  appears  to  the  chancellor,  that  the  complainant 
was  in  a  manner,  or  might  well  suppose  himself  to  be,  un- 
der the  necessity  of  making  a  contract  for  land,  which,  in- 
dependently of  the  contract  for  the  mill-iieql,  he  would  nei- 
ther have   offered  to   purchase,  nor  have  purchased,  if  of- 
fered: that  neither  of  the  parties  were  acquainted  with  the 
thing  contracted  for,  and  that  the  complainant  has  twice 
been  deceived.     In  saying  this  the  chancellor  means  no 
imputation  on  the  defendant,  \vho  certainly  acted  honoura- 
bly with  respect  to  the  first  contract,   and  who  probably 
nas  withstood  the  claim  of  the  complainant,  because  he  has 
himself  been  disappointed,  &c.     To  sustain  the  fair  char- 
acter he  has  enjoyed  during  a  long  life,  he  can  do  no  betti  r 
•than  perform  the  fallowing  decree,  without  dflay — DrcrrcJ, 
that  the  contract  between  the  complainant  and  defendant 
for  the  sale  and  purchase  of  800  acres  of  land  in  the  state 
of  Kenti'-'kij,  as  stated  in  the  bill  and  answer,  be  vacated 
and   annulled,    and    that   the  deed    to   the    complainant 
from  the  defendant,  executed  iu  consequence  thereof,  dat- 


OF  MARYLAND; 

6d  the  10th  of  February  1796,  and'  filed  in  this  cause,  he        1809 
Vacated  and  annulled,  so  far  as  the  power  of  this  court  ex-      h — /~— ** 
tends  and  that  the  complainant,    on  the   defendant's   de-  v» 

Sdpi»ngunt 

mand,  shall  reconvey  the  said  land  to  the  defendant,  irt 
the  same  manner  as  the  defendant  conveyed  to  him.  Hut 
this  may  not  be  done  until  the  defendant  shall  brinj  in  or 
pay  the  money  as  herein  after  directed.  That  the  defen- 
dant bring;  into  this  court,  to  be  paid,  or  that  he  pay,  to  the 
complainant,  the  sum  of  £9.80.  with  interest  from  the  l()th 
of  February  1796;  or  that  on  the  10th  of  February  next* 
he  brini;  into  this  court  to  be  paid,  of  that  he  pay,  to  the! 
complainant,  the  sum  of  £43$  8  6,  that  being;  the  amount 
of  the  money  paid  hy  the  complainant  to  the  defendant, 
and  of  the  improvements  by  him  made  on  the  mill-scafj 
£c.  with  interest,  &c.  That  the  sum  last  mentioned,  if 
not  paid  on  the  last  mentioned  dav.  or  if  the  principal  anil 
interest  be  not  before  discharged,  shall  carry  interest  from 
the  last  mentioned  day.  $ut  costs  are  not  to  be  allowed 
the  complainant.  From  which  decree  the  defendant  appeal- 
ed to  this  court. 

The  cause  was  argued   before   POLK,   BCCIIAXAN,    NI- 
CHOLSON, and  KAULE,  J. 

Skari/F,  for  the  Appellant.     The  land  was  sold  as  lying 
in  Rourbon  county,   in  the  state  of  Renfucki/,  and   is  de- 
scribed by  mcten  and  bounds.     The  fact  is.  that  the  land, 
at  the  time  it  was  granted,  was  situate  in  Bonrbnn  county 
in  the  state  of  i'irpmifi.     At  the  time  it  was  sold    a  new 
state  had  been  erected  by  the  name  of  Kentucky,  and  from 
the  county  of  Bourbon  two  counties  had  been  taken,  call- 
ed Clarke  and  Mason  counties.     The  defendant's   answer 
alone  supplies  the  proof  required  by  the  bill.     That  taken 
under   the  commissions  does  not  make  out  the   plaintiff's 
case.     When  speaking  of  land   laying  upon  the  waters  of 
any  great  river,  it  does  not  mean  necessarily  that  the  water 
flowed  by  the  land.     The  meaning  is,    that  it  was  at  no 
great  distance,  or  it  was  the  next  contiguous  water  to   it. 
The  decree  «f  the  chancellor  vacates  a  deed  for  land  in  the 
state  of  Kentucky.     This  he  had  no  authority  to  do.    The 
decree  is  also  incorrect   in  another   particular — it    should 
have  been,  that  upon  a  reconveyance  of  the   land  by  the 
complainant  to  the  defendant,  then   the  latter  should  pay, 
&c.     But  the  chancellor  has  annulled  the  deed,  which  he 
vol.    u  57 


CASES  IN  THE  COURT  OF  APPEALS 

1809         could  not  do,  and  if  the  money  is  paid,  (lie  defendant  lot«* 
both  the  money  and  the  land.     But  independently  of  this 

_  I  '"        i 

objection,  the  facts  staled  in  the  bill  have  not  been  proved 
by  the  testimony  taken  in  the  ca»e.     There   has    been  no 
evidence  whether  the  land    lay  in  A'cnfitrki/  or  not.     Nor 
is  there  ?my  evidence  thp.t  the  complainant  railed  upon,  or 
gave  notice  to  the  defendant  that  the  land  wjis  not  in  Ken- 
tin-ky.     But  after  laying  by  >ix  ye:u>.    he  now  v\i-hes   for 
Ihe  money  to  be  refunded.     He    may  have  sold    the  land, 
or  it   may  hr.ve  been  sold  for  the    taxes    due    thereon.      A 
stale,  forgotten  claim,  is  discountenanced  by  the  court    of 
chancery.     The  point  of  time,  when  a  claim  is  considered 
as  stale,  is  affixed  to  the  nature  of  the  transaction.     Here 
the  land,  in  a  remote  state,    was  abandoned  for   six  years. 
and  most  likely   it  has  been    sold    to   pay    taxes.    There 
is  no  evidence  that   the   land    docs  not  lie  as   slated    in 
ihe  deed.     As   to   where    it  does    lie,    i>   rasceptibtt   of 
better  proof  than  that  produced.     The  only  proof  is  in  the 
defendant's  answer,  and  that  must  be  taken   as  proof,   and 
beins;  so,  there  is  an  end  of  the  case.     The  land  exists  ac- 
cording; to  its  nttfrtrnl  description,  as  described  in  the  deed; 
and  admitting  the  whole  allegation  of  the  bill   of  com- 
plaint, the  contract  was  a  valid  one.      It  is  not  denied  but 
that  the  defendant  had  a  rijjit  to  the  land;  but  it  is  alien  J 
that  it  does  not  lie  in  Bourbon  county.     This  may  be  as- 
similated to  a  story  told  of  an  old  lady  in  South  Card: 
vho  always  supposed   she  resided  in  a  particular  county, 
but  upon  running  the  county  lines  it  was  discovered    that 
her  residence  was  in  a  different  county,  at  which    circum- 
stance she  was  greatly  concerned,   for  she  observed,   that 
8hc  had  always  heard  that  the  county  in  which  her  residence 
was  held  to  be,  was  a  very  unhealthy  county.     The  chan- 
cellor, by  his  decree,  has  said,  that  there   is  a  iliflVrence 
between  grantees  and  bargainees.     It  is  difficult  to  ascer- 
tain the  distinction.     A  deed  may  be  vacated  on  the  ground 
of  fraud,  &c.  but  a  mistake  in  a  contract  does   not  vacate 
it.     Relief  may  be  had  without  its  being  vacated.     If  A 
sells  100  acres  of  land,  and   it  holds  out   to  contain   only 
50  acres,  would  the  court  of  chancery  vacate  the  contract? 
Surely  imt:  but  it  would  give  damages  for  the  deficiency  of 
land.     Here  there  was  no  fraud  alleged.      It  may  be  con- 
sidered as  a  mistake  as  to  the  name  of  the  county  in  which 
the  laud  lay j  and  if  the  laud  was  of  less  value  in  one  coun- 


OF  MARYLAND.  45* 

ty  than  in  another,  could  not  relief  be  given  without  va-        1809 
eating  the  contract?     There  is  no  dispute  as  to  the  quality      ^"v>»J 
or  quantity  of  land.     If  the  complainant  had    produced  y 

proof  that  the  land  boing  considered  as  lying  in  Bourbon 
county,  was  the  only  inducement  to  the  purchase,  then  it 
would  lay  a  foundation  fur  vacating  the  contract;  but  no- 
thing of  the  kind  is  alleged,  or  appears  in  proof.  The  land 
is  described  as  laying  op  the  waters  of  Licking}  and  the 
proof  is,  that  it  does  lie  there.  As  to  the  land's  lying  in 
this  or  that  county  was  no  inducement  to  the  purchaser,  but 
if  it  was  not  in  value  equal  to  that  intended  to  be  sold,  the 
chancellor  ought  to  have  compensated  in  damages,  and  not 
vacated  the  contract.  Before  the  complainant  asked  lor 
equity,  he  ought  to  have  done  equity.  He  should  have  re- 
conveyed  the  land  to  the  defendant,  according  to  the  laws 
of  Kentucky.  But  he  claims  both  the  land  and  money, 
9tid  the  chancellor  has  so  decreed  as  to  give  him  both  land 
and  money.  There  is  some  evidence  taken  as  to  the  value 
vf  the  land  near  to  the  court-house,  and  land  high  upoti 
Licking.  Better  proof  than  that  which  was  taken  could 
have  been  had  by  sending  a  commission  to  the  very  place- 

Johnson,  (Attorney-General,)  for  the  Appellee.  The 
grant  for  the  land  describes  it  as  lying  on  and  crossing 
Licking,  in  Bourbon  county,  in  the  state  of  Virginia,  and 
it  is  dated  the  23d  of  November  1790.  The  survey  was 
before  the  division  of  the  state,  and  the  grant  was  after  the 
division.  The  act  erecting  Mason  county  was  on  the  5th 
of  November  1788,  and  the  act  erecting  Clarke  county  was 
qn  the  9th  of  December  1792.  The  land  when  it  wa» 
granted  could  not  lie  in  the  county  of  Bourbon  from  the 
description  given  of  it  in  the  grant,  and  that  given  «.f  the 
county.  Suppose  A  buys  land  lying  on  the  Potomac  in 
Frederick  county,  and  it  turns  out  that  it  lies  in  Allcgany 
county  on  the  Potomac,  would  he  be  bound  by  his  contract 
and  be  compelled  to  take  the  land?  Suppose  indeed  it  lay 
in  Saint-Mary's  on  the  Potomac,  would  it  be  considered  as 
an  immaterial  circumstance  provided  it  lay  upon  the  Polo- 
mac,  a  long  extended  river?  Licking,  or  arty  other  riveiy 
is  not  so  good  a  description  as  a  county.  When  this  con- 
tract was  made  the  defendant  had  no  land  on  Licking,  in 
the  county  of  Bourbon.  The  land  was  represented  to  be 
19  inile^  from  Bourbon  court-house,  and  — «  miles  from 


453  CASES  IN  Till:  COUIT  OF  Al'FKALS 

1809         f'.ringlon.     The  evidence  <»f  Scwrll  is    (hat  the  d''f, 
l-~v  —  '      tnt  said    that  tl  •  nant   "will    not    find  a  J<>hn>t>/ 

•it'ilcn  in  me,"    t;«;n..r^,    that  if  IIP  docs  tint    find    the 
land,  he  \vould  not  recover  of  him  as  he  had   of 


There  is  proof  that  the  defendant  refunded  to 
vho  had  purchased  part  of  the  samp  tract.  ^  here  tli'-io 
is  a  trivial  circumstance,  the  chancellor  does  not  annul  the 
Contract,  but  where  there  is  a  material  one  wlm.h  »oes  to 
the  essence,  then  the  contract  is  annulled.  The  defendant 
is  'bound  to  show  that  the  circumstance  is  not  material. 
There  is  m>  proof  at  all  on  the  part  of  the  defendant.  II" 
oujrht  to  have  showed  that  his  deed  |.a»-ed  (In-  lr-;;d  »  -f.co, 
according  to  the  laws  of  (he  country,  l»H'oie  ho  complaint 
of  the  deed's  being  annulled.  This  court  can  give  that 
decree  which  the  chancellor  ought  to  have  ;Jven.  if  lii^  is 
erroneous.  HOW  could  the  complainant  prove  that  the  l.v.d 
was  not  there?  It  wn*  proving  a  negative.  The  defendant 
should  have  proved,  that  it  was  there.  Hut  it  has  been  -.mi 
that  the  deed  answers  the  natural  description  of  the  land. 
Jt  was  more  material  that  the  land  should  lie  in  Hnvrbon 
countv,  than  on  Li-cJcinif,  a  river  of  perhaps  IfiO  n.ilrs  in 
length.  On  the  part  of  the  complftinant  it  is  cojiten<K'd, 
that  both  descriptions  «houM  be  complied  with,  so  as  to 
bind  him  to  the  contract  It  has  been  said,  that  under  the 
decree  the  defendant  lo^es  his  land  and  money.  I»ui  sup- 
pose the  decree  is  reveined,  and  it  tr.rns  out  that  the  land 
is  swallowed  up  by  elrer  .surveys,  then  the  complainant 
lose*  the  land  and  the  ra  tiey. 

ShnaJJ.  in  reply.  The  omtft  probantli  is  on  the  com- 
plainant; he  avers  a  fact  which,  if  denied,  he  i^  compelled 
to  prove  before  he  can  succeed.  The  attorney  -nem-ial 
has  sai«l,  that  one  description  failing,  the  defendant  is 
bound  to  show  it  is  not  a  material  one,  which  jjoes  fn  the 
thence  of  the  contract.  This  is  not  so.  If  the  complai- 
nant has  sustained  damage,  he  must  prove  it.  The  proof 
is  not  made  out  on  the  part  of  the  complainant,  and  he.  is 
obliged  to  resort  to  the  defendai*  •  r,  and  if  he 

does  the  answer  must  be  taken  all  together.       'I  he  law  of 

niii  has  been    resorte  '    to   for  the  purpose   of 
ing  that  the  land  does    not  lie  n   J  .  «>;:nty.     It  is 

not  possible   to  nay  by  that  law  whether  i><  not  iho  land 
lie*  In  that  county.     It  is   not  cteuied,  tbat  il  ti.crc  is  an 


OF  MARYLAND.  4 

immaterial  circumstance  which  aflects  the  contract,  tliat  1809. 
redress  ought  to  be  bad  in  damages.  As  to  when  Ktn- 
lucky  was  atlrnitlctl  into  the  union,  See  1  1\>l.  I.t'ica  of 
U.  S.  594.  The  land  having  been  once  in  Jiourbon  coun- 
ty, is  sufficient.  J)prye.y's  Lessee  vs.  Ihnnnwnd,  1  I/arr. 
4"  Jo/in?.  193.  Sii])pose  a  deed  for  a  house  in  //<?;,> o-'.s- 
town,  in  Frederick  county,  would  it  be  a  good  deed?  'The 
house  in  flayer's  town  must  have  been  the  essence  of  tlio 
contract.  A  s  co  StwtlPn  testimony  that  the  defendant 
said  the  con  plainant  would  not  find  a  Johnny  Snini'dm  in 
him,  the  meaning  is,  that  as  tlic  complainant  had  alleged. 
that  Snow  den  had  cheated  him,  (uhich  was  not  true,)  the 
complainant  would,  not  be  cheated  by  him,  as  the  land  was 
to  be  found. 

Jtidge/y,  also  in  reply.  The  decree  of  the  chancellor  is 
erroneous  on  two  grounds—  1.  The  court  of  chancery  had 
not  jurisdiction,  and  the  decree  cannot  be  enforced.  2.  If 
the  court  of  chancery  had  jurisdiction  for  compelling  a 
specific  perfofttiaiKe  of  the  contract,  yet  there  is  no  proof 
in  the  case  that  there  was  fraud,  mistake,  £.c.  upon  which 
to  give  relief. 

First  position.  A  ?ub«equent  division  of  the  state,  anil 
forming  a  new  one,  and  the  laying  off  new  counties,  did 
not  alter  the  contract,  as  the  land  could  not  be  affected  by 
any  such  proceeding.  The  decree  cannot  be  enforced  in 
this  court.  The  remedy  is  to  be  against  the  person,  arid 
Bot  against  the  thing.  Suppose  the  appellant  complies  with 
the  decree,  by  paying  the  money,  what  process  can  hehav* 
to  compel  the  appellee  to  comply?  Suppose  the  appellee 
had  paid  the  appellant  the  money,  and  the  latter  had  re- 
fused to  convey  the  land,  could  the  court  of  chancery 
compel  a  specific  performance  of  the  contract?  The  court 
had  no  power  to  compel  a  deed.  It  might  decree  the  money 
to  be  refunded.  If  the  chancellor  had  decreed  a  deed,  could 
the  decree  operate  in  Kentucky?  It  certainly  could  not. 
It  is  evident  that  the  chancellor  had  no  jurisdiction  to  ena- 
ble him  to  make  this  decree;  there  being  no  mutuality  as 
it  affected  the  parties.  He  doubted  his  own  power,  for  he 
says  "so  far  as  the  power  of  this  court  extends."'  Tin's 
shows  that  he  did  not  think  he  Imd  jurisdiction  to  vacate  a 
deed  for  land  in  another  state.  The  appellee  was  guilty  of 
and  is  therefore  &ot  tp  be  benefitlcd  by  it.  He 


43-t  CASES  TX  T11K  COURT  OF  APPEALS 

1 809.        niny  have  convoyed  toe  land  away,  or  it  may  have  been  sold 
(o  pay  the  taxes  on  it. 

Second  position.  Admitting  the  court  had  competent 
jmisdiciion  to  ^ive  the  relief  prayed,  yet  time  is  not  suf- 
ficient evidence  upon  wl.irh  tiie  relief  could  be  grounded. 
The  answer  denies  thf  material  facts  relied  0:1  hy  the  bill. 
Tlie  reason  for  rescinding  the  first  contract  was  not  for  the 
cruise  stated  by  the  chancellor.  It  was  fully  proved,  that 
no  dam  could  be  rundc  so  as  to  prevent  the  water  from 
overflowing  on  the  neighbouring  lands.  The  first  contract 
vas  fair  and  honest;  and  the  rescinding  it  was  perfectly 
agreeable  to  both  parties,  aud  was  done  at  the  instance  uf 
the  appellee,  who  instead  of  wishing  the  money  to  be  re- 
funded, was  desirous  to  take  L'rntncky  land.  There  is  n» 
proof  that  the  appellee,  when  he  went  to  Kentucky,  nmde 
the  necessary  inquiry  as  ta  where  the  land  lay.  It  the  laml 
lay  in  this  state,  it  was  not  such  a  contract  as  ought  to  be 
annulled  upon  the  mere  ground  of  its  not  lying  in  the  conn  t 
ty,  if  it  conformed  to  the  other  description-. 

DECKLE    KEVEUSEP. 


DEC.  (E.    S.)  KEGKO  GEORGE  vs. 


ii-:uh  of      APPF.AL  from  Somerset  county  court.     This  was  a  petr- 

S  K,  a  rctMcnl  of 

thi»  tut.-,  .  «bv,-  tjoll  (•„.  freedom.     The    facts  of  t'nc  case,    as  admitted  at 

IX*  rtnr'i18T    *»'     '"* 

;\t.1  the  trial,  wore  these  —  TOP  petitioner,  (the  appo.Uant,)  waa 
the  property  of  Sttinncl  Engcrsolc,  who  resided  in  Sumtr- 

r',!f  sf-t  county,    ami  on  his  death,   camo  to  the  possession    of 

V1,'1,"  flic/tan!  gn-jcrsolc,  his  administrator,  who  icsidrd  in  the 
"rV/  -anie  county.  Jt.  £ngeraole,  the  administrator,  by  bill  of; 

i1?i..'  oi'i'I'^'ti-  sale  dated  the  iCth  of  October  179?,  sold  the  petitioner  to 

-  .>  tin-  dt  fetulant,  then  a  resident  also  c-f  the  «aid  county,  and, 
Y»w,''i.r  br  «m  who  inim  eOiatcly  afterwards  removed  to  the  state  of  I'ir- 

.KllltU         tO  I  •     -  -     1       1    •  r,.| 

^ci-dom.  /,  and  took  the  petitioner  with  nun.    1  lie  court,  f/W/c, 

Ch.  J.  and  Done,  A.  J.j  were  of  opinion,  and  so  instructed 
thejury,  that  the-"  facts  were  not  suflicient  tocntitle  thepeti' 
tioner  to  his  freedom.  The  petitioner  exceptcd;  and  the  ver- 
dict and  judgment  being  against  him,  he  appealed  to  thi& 
(ourt. 

The  cau*e  was  argued  before  BUCHANAN,   NICHOLSON, 
GANTI,  and  KA-.-.LK,  J.  by 

If  .  li.  A/urltnt  for  the  Appellant;  and  t»y 
X  tiuylyi  toe  liie  Appellee. 

JUDCME5T 


OF  MARYLAND.  455 

BOREING'S  Lessee  vs.  SINGERY. 

ERROR  to  the  General  Court.  In  this  case  there  was  a 
\vrit  of  procedendo  from  the  late  court  of  appeals,  direct- 
ing  a  new  trial  of  an  action  of  ejectment,  (which  had  been 
tried  in  the  general  court  at  October  term  1799,)  for  a  tract 
of  land  called  Boreing's  Habitation  Rock,  lying  in  Balli- 
more  county,  containing  300  acres  of  land.  [See  4  Hart. 
8f  M'Hen.  398. 3  The  defendant  took  defence  on  warrant  tent  «vid 
for  all  that  part  of  Barrings  Habitation  Hock,  which  is  tiiu-ate  of  survey 

returned     to     iinj 

included  in  Singe.nfs  Trouting  Streams,  according  to  his  |:>^  office,  «,.« 
locations  thereof  on  the  plots  returned  in  the  cause.  TIie K<'>«-i-:i 

court    r.'tiisi-il    ia 

1.  The  plaintiff,  at  the  new  trial  at  October  term  1805,  d'-tc.' ,.tlie    ''">, 

'  that  it  H  not  rotiM 

read  in  evidence  the  patent  of  Boreing's  Habitation  Rock,  in7»  u%*4°'vi 
granted  to  Ezekiel  Boreing,  the  lessor  of  the  plaintiff,  on  U""^  fc'a^T 
the  24th  of  April  1795,  for  300  acres  of  land  more  or  less.  l^'SSjSJS 
The  defendant  produced  a  grant  issued  to  him  the  20th  of  ci^'^m,V£ 
April  1775,  for  the  tract  called  Singer ^s  Trouting  K^'w^ 
Stream*,  for  which  he  took  defence.  The  plaintiff  then  im"i" office0 a, '« 
produced  the  original  certificate  out  of  the  land  office  for  gn»t,  w«»fi>rfcr4 
the  land  called  Singcry's  Troiiling  Streams,  dated  the  30th  nVmude  d«t  bf 

.'  .  ,  -.  .,    ,  Him  or  hi»  autjio- 

of  September  17/0;  and  gave  evidence   by  James  Colder*  ritj 

c     n    ,   .  "     ,  1'bepronrietarjr 

that  he  was  surveyor  ot   ualtimorz  county  w.ien  the  onai-  in-u-wiiMw,    n- 

"ir,  quirinjf  a    survey 

rial  certificate  was  returned  to  the  land  omce,   upon  which  i°  »>•.- mmie  «»' ve- 

st-rved  lands,  &c. 

the  patent  for  Singery's  Trouling  Streams  \vas  granted;  rc^dp  •»*»!*««•„ 
and  that  the  certificate,  on  which  the  patent  issued,  was  l."^.''^."/.''^^.^ 
not  matle  out  or  signed  by  him,  or  by  his  authority;  that  ;,<;  t^"'^'/t-'^». 
the  original  certificate,  as  entered  upon  hig  book  of  jjit V^SwdlS 
surveys,  contained  no  call  to  the  beginning  trees  of  the  !S*b^M3*»"e^ 
tract  of  land  called  Petticoat's  Louse,  nor  was  there  any  K»^,lb!''theT 
such  call  in  the  certificate  as  made  out  by  him,  or  under  wfs?k>?»en,e  Ti"It 
his  authority.  That  the  certificate,  as  made  out  by  him  to  aii7notite,ofijS5 
be  returned  to  the  land  oillce,  described  the  land  called  DM™ given. 

,_  ,,  ...  Depositions      ^i- 

Sinseru  8  J  routing  SlrecmM  as  ''ue^innina;  at  two  bound-  m>iany taken we« 

,.  .  n..t    iiennittrd    t.» 

ed  wliite  oaks  standing  betvveeji  two    barren    hills   at    the  |K   ri-ad  >»  ••'*- 

il'ni'f,      akhough 

end  of  the  last  line  of  a  tract  of  land  called  Merryman's  <j»'"-d    »»  «-«i- 

dcnce  by   the  of,- 

JMountain,  (included,)  and  about  west  nine  perches  from  v***  t*av< 
George's  Run,  and  running  thence, "&c.  (nineteen  courses 
\vithout  any  calls,)  "and  then  with  a  straight  line  to  the 
beginning,  containing  178  acres,"  &.c.  as  taken  from  his 
original  book  of  surveys.  The  plaintifi'  produced  this  book 
in  court,  and  offered  to  read  it  to  the  jury.  He  further 
offered  to  prove  by  Cedder,  that  he  had  examined,  the  on- 


4-56  CA<!-:-   IX  TIIF.  i    OF 


1809        ginal  certificate  of  Si,i:--c;->/\t  T/wi'M*  *•  the 

(•red  and  sijj-u'd  (!),• 

•  fur  the  lam!  oitit  e.  lly  which  rvitlem-o 
t!ie  plaiutiT  ofl'-n-d  (o  prove  to  the  jury,  that  the  certifi- 
cate «'f  -v.  -  ued  to  the  land 

.  and  OM  \rhich  the  patent  issm-d,  \vas  .1  forgery,  and 
could  tint  nperale  to  n:ns  m  ire  Ian.  I  than  \\:is  contained  in 
tiie  certificate  «i^ii*>d  bv  Cat'ta:  The  defendant  tlu-n  of- 
fered exidotice,  thut  no  oilier  certificate  of  Sin 
'J\»n!iirr  Sfi-i-im-:  rxci'pl  thv  one  on  \v!iir.h  the  patent  i^- 
t-in-d  to  (lie  dcfondnnt,  ua-.  ev:-;-  i-i'tiirjn>d  to  the  land  office. 
lie  also  olTere<l  in  evidence,  tht;  certificate  returned  to  the 
land  oHire,  ^^ilI^  the  cndor-t-iMt-ns  (lierenn,  and  the  afore- 
said patent.  [.Vf<?  them  scf  out  in  4  fiarr.  $•  M-ffr.i. 
30R.]  He  also  oRVml  evidence,  tliat  Ctt' 
ili<l  make  out  a  cc;-tirir;ite  for  Sinzcnfs  Ti-o>ttin% 
fro  i,  i  tin-  n;':-y  made  in  lii^  ):o<i!;:  atul  to 

•   that  a  c-  for    .SVr/qrry'j    Ti  '.-ram* 

Tiover   vas  e\.Mnin»'il    with     th«>     said     entry,    he     ofl 
in  evidence,    by  t..-'./rr,    <lia<    lie    did   not    be^in    to    - 
^vv  Ian'!-,  in  the  rrxrrpcs  of  RaltiffiOte  county   lit  fi  ire  (he 
24th  of  Ivivember  !  TO,  and  that  he   vonld   not   hava  ir-- 
sorled  a  certificate  in  his  book  of  an   elder  date   thaji    (he 
24th  of  November  1770,  if  he  had  laken  notice  af  such  a 
date.     lie  also  pffered  to  prove,  that  there  arc  cerii:. 
of  surveys  contained  in  the  said  book,  bearing;  date   since 
the  4th  of  July  1776.     He  also  oR'ered   in  evidence  the 
proprietary  instruction*  to  JR^'iert  E<len,    Daniel  fii'tam/, 
and  John  Muffon  Jordan,  dated  tiie  3?th  of  June  ITGVfa), 
refjuirin^;  that  they  should    forthwith,    if  ni'ce.-»ary, 
an  exact  survey  anil  return  to  be  made  of  the.  lord  propiie- 
'    lands  and    manors.  &c.      He  also  offered! 
evidence,  that  CaMcr  uas  appointed  to  purvey  the  land*  in 

.-.(ructions  mentioned;  ami  to  ;.:-nve  that  Cult'tr's  au- 
thori'N  i-cfore  the  4th  of  July  1776,  nfleretl  in  evi- 

dence  the  declaration  of  independence,  lie  al-o  <-(Tered 
in  evidence,  that  the  follouino;  part  of  the  entry  in  the  >aid 
book,  and  no  more,  is  in  the  handwriting  ot  .  .  ui:: 

"Amended  for  Chridltm  •S'i/f^rr;/,  a  tract  beKinoingRt  tv.  o 
b  -iiii.-ied  white  oaks,  ufandiny;  betuten  two  b«irren   hi          ' 
rl  ..-  finl  of  tiie  la^t  line  of  a  tract  called  JArrj/wrw'*  Hlmni- 
includrd,}  and  about  west  nine  perches  from  fi- 

(aj  Ent-jrcd  in  the  Council  record*,  J.  IL  folio  241,  '<u 


Ofr  MARYLAND.  437 

feun,  and  running  then  N  87  W  22  ps.  S  47  W  96  ps."  1809 
He  also  offered  in  evidence,  by  Calder,  that  the  latter  part 
of  the  said  entry  is  not  in  his  handwriting,  and  that  he 
did  not  know  in  whose  handwriting  it  was,  but  supposed  it 
to  be  the  handwriting  of  a  man  named  Norris,  one  of  his 
deputies.  That  the  land  included  in  the  courses  taken  from 
the  said  entiy,  is  in  the  reserves  of  Baltimore  county;  and 
that  the  entry  made  in  his  book,  was  ihade  after  the  4th  of 
April  1775,  but  on  what  day  he  knew  not.  The  plaintiff 
further  offered  evidence,  by  Calder,  that  the  reason  he  re- 
corded a  certificate  in  his  book,  bearing  date  the  30th  of 
September  1770,  was  from  an  oversight  in  his  not  particu- 
larly attending  to  the  date  of  the  certificate,  and  that  he 
would  have  corrected  the  erroneous  date  had  it  particular- 
ly occurred  to  him.  That  he  had  a  number  of  deputies, 
who  were  authorised  by  him  to  record  certificates  in  his 
book,  after  they  had  been  examined  and  signed  by  him. 
The  defendant  objected  to  the  plaintiff  giving  any  of  the 
evidence  offered  by  him,  for  the  purpose  for  which  it  was 
offered. 

Shaajf,  for  the  Defendant,  stated  two  objections  to  this 
testimony—- 1*  Because  the  book  was  made  without  authori- 
ty, and  the  entry  was  not  made  by  Calder  himself,  nor  ex- 
amined by  him,  and  from  his  own  proof  was  not  made  un- 
til after  the  patent  issued  to  the  defendant.  2.  Because 
it  is  contrary  to  the  grant,  and  the  grant  cannot  be  held 
void  in  this  court.  He  cited  Twyne^s  case,  3  Coke,  80. 
13  Vin.  Ab.  519,  527.  2  Corn.  Dig.  575.  2  Bac.  M.  602. 
Lane,  105,  (argt.)  Upton  vs.  Basset,  Cro.  Eliz.  445.  Bull. 
JV.  P.  260.  Stat.  27  Eliz.  ch.  4.  CarmWs  Lessee  vs. 
Griffith,  \  Harr.  fy  M-  Hen.  297.  Maxwell's  Lessee  vs.  Lloyd, 
1  Harr.  <$•  MkHen.  212.  Spalding'a  Lessee  vs.  Reeder,  I 
Harr.  fy  M-Hcn.  187.  Hammond,  et  al.  Lessee  vs.  Shere- 
dine,  4  ffarr.  4*  M'Hen.  420;  and  WebVs  Lessee  vs.  Beard, 
1  IJarr.  Sf  Johns.  349. 

Martin,  (Attorney-General,)  and  T.  Buchanan,  for  the 
Plaintiff,  were  stopped  by  the  court. 

CHASE,  Ch.  J.  (sitting  alone.)     This  question,  he  said, 
had  already  been  decided    in  this  case  at  the  former   trial 
at  October  term  1799,  when  there  was  a  fuller  court.    He 
considered  himself  bound   by  that  de<ji*ioD,    even   if  h% 
vot    ut  CB 


458  CASES  IN  tHE  COtJRT  o£  APPEALS 

180?).  thought  differently  now.  lie  therefore  permitted  the  evi- 
dence to  be  read  to  the  jury,  bvini;  of  opinion  that  the  fact, 
nhether  the  certificate  \v;t>  iW^ed  or  not,  was  a  material 
fact  in  this  cause,  and  that  the  evidence  offered  by  the 
plaintiff  was  competent  and  admissible  evidence  to  provs 
that  fact;  and  that  the  credit  of  the  witness,  and  of  the 
surveyor's  book  referred  to,  were  subjects  within  the  pro- 
rince  of  the  jury,  and  proper  for  their  consideration  upon 
the  whole  of  the  case.  The  defendant  cxceptcd. 

2.  The  defendant  then,  in  addition  to   the  facts  before 
stated,  gave  in  evidence,  that   the  locations  on  the  plots 
wade  on  the  part  of  the  defendant  are  true",  as  by  him  lo- 
cated, and  contained  truly  the  land  granted  to  him  in  1775. 
And  offered  evidence  to  prove,   that  the  land  included  in 
the  grant  comprehends   the  land  granted    to  the  lessor   of 
the  plain  tiff*,  called  fioreing'»  Habituli-.ni  !>'<><  7.-,    for  which 
this  suit  is  brought,     lie  also  read    in  evidence  an  office 
copy  of  the  record  and  proceedings  then  depending  in  the 
court  of  chancery,  between  the  lessor  of  the  present  plain- 
tiff and  the  defendant,  on  a  bill  exhibited  expressly  to  va- 
cate the  defendant's  grant.     And  read  in  evidence  the  re- 
cords and  proceedings  in  the  council  chamber,  by  \vl.L !i  u 
commission  was  created  for  the  purp'ose  of  selling   certain, 
lands  of  the  then  Lord  Proprietary   of  Maryland,    which 
is  herein  before  referred  to,  dated  the  50th  of  June  17 
and  proved,  that  the  lands  claimed  by  him  in  virtue  of  hi* 
patent,  were  claimed  by  him  under  a  purchase   from    the 
persons  acting  under  that  commission,    and  were   part   of 
the  private  estate  of  the  Proprietary,    and  not  liable  to  be 
affected  by  the  ordinary  proceedings  and  usual  practice  of 
the  land  office.  He  also  proved  that  John  Clupham,  whose 
name  was  to  the  receipt   of  the  consideration    money  en- 
dorsed on    the   certificate   of  the    land    called    Sinsjfry'a 
'fronting  Streams,  stating  that  he  had,  on  the  1 9th  of  April 
1775,  received  of  the  defendant  the  sum  of  £71  40  ster- 
ling for  the  purchase  money  of  that  land,  was   then  actirlg 
as  clerk   to  the   said   commission.     The    defendant    then 
prayed  the  opinion  and  direction  of  the  court  to  the  jury, 
that  it  is  not  competent  in  a  court  of  law   for  the  plaintiff, 
under  the  circumstances  of  this  case,  to  give  any  evidence, 
or  go  into  any  parol  examination  of  the   surveyor,  or   IHH 
fcwks,  to  vacate  the  defendant'*  grant,  or  to  prove  that  um 


OF  MARYLAND,  4 

Certificate  returned  to  the  land  office,  as  a  foundation   far         18Q9 
that  grant,  \vas  forged  or  frauduleiit,  and  cot  made  out  by      v—"v— ' 

f  Boroinff 

huu  or  his  authority.  v»u 

CHASK,  Ch.  J.  refused  to  give  the  direction  prayed.  The 
defendant  excepted. 

3.  The  defendant  then  offered  in  evidence  the  commis- 
sion which  issued  at  his  instance  out  of  this  court,  on  the 
JSth  of  September  1799,  to  Huntingdon  county,  in  the 
state  of  Pennsylvania,  to  take  the  testimony  of  witnesses 
in  this  cause,  with  the  depositions  taken  under  it.  The 
return  to  this  commission,  after  setting  forth  the  meeting 
of  the  commissioners,  and  their  having  taken  the  depositi- 
on of  a  witness  in  answer  to  certain  interrogatories,  con- 
cludes by  the  commissioners  certifying,  that  "the  forego- 
ing interrogatories  were  taken  at  the  instance  of  Joahvtf 
Stevenson,  on  his  asserting  that  the  plaintiff'  had  know- 
ledge of  his  coming,  and  intention  of  having  this  commis- 
sion executed,'1  To  the  admissibility  of  this  evidence, 

T.  Buchanan,  for  the  Plaintiff,  objected,  because  there 
had  not  been  legal  notic?  to  the  plaintiff  of  the  time  of 
executing  the  commission. 

Key,  for  the  Ejefendant,  cited,  Norwood  vs.  Owingst 
(ante  98J  where  this  court  decided  that  notice  was  not 
necessary  in  executing  foreign  commissions. 

CHASE,  Ch.  J.  This  case  is  npt  similar  to  that  of  Nor- 
wood vs.  Owings.  In  that  case  ^he  commissioners  certi- 
fied that  they  had  given  notice;  but  in  this  case  it  does  not 
appear,  by  the  return  of  the  commissioners,  that  they  had 
given  any  notice,  or  that  proper  notice  had  been  given. 
The  court  are  of  opinion  that  the  commission  and  return 
are  not  legal  evidence,  nor  any  part  thereof.  The  de- 
fendant e^cepted. 

4.  The  plaintiff  then  offered  to  read  in  evidence  the 
commission,  with  the  testimony  returned  with  it,  which 
had  been  executed  and  returned  at  the  instance  of  the  de- 
fendant, under  a  commission  issued  from  this  court  to 
Fcn/ette  county  in  Pennsylvania,  on  the  14Ui  of  March 
1798,  but  which  the  defendant  refused  to  read.  The  re- 
turn is  as  follows:  "In  obedience  to  a  commission  to  us 
directed  by  the  hon'ble,  t|ie  judges  of  th.S  general  court 


£60  CASES  IN  THE  COURT  OF  APPEALS 

1809  for  the  western  shore  of  Maryland,  we  met  at  the  house  of 
James  Gregg,  in  fai/ettc  county,  J'cnnaylcanta,  on  the  1st 
of  October  1798,  ami  after  taking  the  oath  directed,  w» 
appointed  J.  M.  clerk,  uho  took  the  oath  directed  in  the 
said  commission.  \\'e  then  put  the  following  intcno^itto- 
ries  unto  Daniel  Goodwin,  of  the  county  aforesaid,  being 
first  duly  sworn  on  the  Holy  Evangely  of  AhniJiU  (iod, 
\i/.."  [Then  follow  the  interrogatories  and  oH&trcrs.] 
«'The  foregoing  interrogatories  were  taken  at  the  in-t.un  e 
of  Joshua  Stevenson,  on  his  asserting  that  Mr.  Cooke,  at- 
torney for  the  plaintiff,  had  knowledge  of  his  coming,  and 
intention  of  having  this  commission  executed,  and  consent- 
ed thereto.  Given  under  our  hands  and  seals,"  &c.  Sign- 
ed and  sealed  by  the  commissioners:  and  certificates  that 
the  commissioners  and  clerk  had  taken  the  oaths  annexed 
to  the  commission  to  be  by  them  respectively  taken.  The 
plaintiff  also  offered  to  read  in  evidence  the  deposition  of 
Daniel  Goodwin*  named  in  the  same  commission,  who  at 
the  former  trial  attended  court,  and  his  deposition  t;ilru 
in  the  city  of  Annapolis  on  the  23d  of  May  1799,  before 
a  justice  of  the  peace,  &c.  by  consent  of  parties,  to  be 
read  at  the  trial  of  this  cause,  so  far  as  the  same  contain- 
ed legal  testimony. 

C ii ASK,  Ch.  J.  This  commission  is  liable  to  tlie  same 
objection  as  the  other  commission,  and  the  court  refuse  to 
admit  it  to  be  read,  being  of  opinion  that  the  commission, 
•was  not  legally  executed;  and  that  the  deposition  taken  in 
Annapolis,  by  consent  of  parties,  was  taken  for  the  pur- 
pose of  impeaching  or  counteracting  the  deposition  taken 
under  the  commission.  The  plaintiff  excepted;  and  the 
verdict  and  judgment  being  for  the  defendant,  the  plain- 
tiff brought  a  writ  of  error  to  this  court. 

The  cause  was  argue:!  on  the  bill  of  exceptions  taken 
on  the  part  of  the  plaintiff,  being  the  but  bill  of  excepti- 
ons herein  stated,  before  BUCHANAN,  NICHOLSON,  (JAM  ;> 
and  E.VKLK,  J.  by 

T.  Buchanan*  for  the  Plaintiff  in  error;  and  by 
Slimij^,  for  the  Defendant  in  error. 

JUDGMENT   AFFIRM  KO. 


OF  MARYLAND.  461 

MOHRISON  vs.  GALLOWAY.  1809. 

APPEAL  from  Washington   county  court.    This   was  an 
action  of  covenant,    brought    by  the  appellant   hi  the  late  »> 

Galloway 

general  court  on  the  llth  of  February  1799,  upon  the  lol-  Jn!lll  a4.,i01,  nf 
lowing  articles  of  agreement  entered  into  between  him  and  JSn'ii'JelVihoJTR- 

,.  i    r        i  /  it         >      «  i     i-    i  r  hriiarj   1709, upon 

the    defendant,    (now   appellee.)    "Articles  01  agreement  an  »eT«mentexe- 

maclc  this  18th  of  March  170G,  between  William  Me,  rn son  ot  March  n?.;,i.e. 
of,''  &c.  "and  JBcnjamin  Galloway  of,"  &c.  "Y\  l-.ereas  it  pfototHrj  ami  » 

*  9  (the     tief.  lulainj 

is  the  intention  of  the  said  Gwoway  that  a  complete  mer- *tj«»ol"«l"K    '"1er 

din    Uwt  a   com. 

chant  mill  shall  be  erected    at  a  seat  on  Chew's  Farm,  in  i>'.i:|e,    "J',"'1"!'1 

nn (should  benwift 

Washington  county,  and  said  Morrison   is  willing  to  exe-  j£  >{)e0'  "'^"jjl'i 

by     G,    Mln>    va« 

n!so  fo  provide  n  framed  or  hewed  lojjjyed  dwelling-house  fl  the  mill  for  M  to  reside  in,  ami  M  agreed 
that  lie  would  lake  up  his  residence  :ii  the  n.ill  in  ihc  d«>  hMig  bou«e,  ai  d  would  «fi  n«  the  manager 
and  snpoiiinciul. nit  ot  (he  mill,  vhiih  was  ti.  be  win  kod  for  the  joint  l-em-fit  of  M  and  G,  ii.ii|iial 
parts,  M  to  receive  one  hull'  of  Uit-  lieu  profits,  and  G  the  other  l.iilf  '1  In-  copartnership  10  lon.meiice 
ai  soua  as  the  mill  should  he  reudj  tndowoik,  and  continue  I'm-  leu  jeais.  Thnt  »  regular  set  of 
books  should  be  kept,  which  should  contain  all  the  transactions  of  tnr  copartnership,  art!  a  settle- 
Hi. Mil  should  l>e  i- Heeled  at  th<:eml  ot  every  year.  "1  lie  firewood  should  lie  furnished  IK  in  the  (arm 
on  which  G  resided,  for  the  use  of  two  lire  places  in  ihe  null  and  duelling;  house,  M  the  equal  enst  of 
the  va"1'"  *"r  cutting |  and  hauling  it  to  the  house-;  and  12  acres  ol  land,  unhiding  two  acrts  of  bot- 
tom land  most  convenient  lo  M,  to  be  |>m  under  pood  find  sufficient  ft  nee  tor  his  use.  The  ileclitni- 
twin  uverred.  that  tlie  mill  was  completed  on  the  21st  of  June  17WJ,  HIM)  that  M  | eilermed,  &c  '1 1.e 
breath  assigned  was,  thai  G  did,  on  the  31st  of  January  175)9,  forcibly  eject  M  from  the  mill  and  MI  - 
misej,  and  still  keeps  him  out  That  G  did  not  provide  a  liumtd  or  hewed  logged  dwellibg-honse  at 
the  mill  for  M  to  reside  in  That  G,  on  the  d;-j  and  year  h,st  aforesaid,  anc*  the  mill  »ai  complete 
»nd  put  intu  foinple(e  ino:i<j|i,  did  prevent  M  from  rcceitiiif;  one  half  of  the  ueti  profit  i  o<  the  null, 
but  that  G  did,  contrary  to  the  cons<'nt  of '  M,  receive  ilv  whole  ot  ili«>  profit*  from  the  day  and)  eat 
last  aliircsaid,  until  the  bringing  of  this  action,  and  hath  refused  to  pay  any  part  thei-rof  to  M  A'or 
did  Ci  furnish  >l  with  12  ncrt-sof  land,  including  two  acres  of  bottom  hind  most  con>enient  to  M, 
Under  fjood  and  sufficient  truce  tin-  M's  ii.-e.  The  vitness  to  the  sifrT'immt  \v;i*  uffm-d  b)  G  10  prove 
•what  look  place  1«  I  ween  G  ar.d  M  previous  to  anil  ot  the  tin.e  of  the  iigieemt-nt,  as  to  ihf-ir  intention 
and  meanini*  in  the  a£ic<  n.cnt;  also  another  witne-s,  who  proved  that  vhen  he  M.'I.S  at  wi.rk  upon  the 
dam  for  the  n  ill,  he  ri  cei\ed  on'trs  IVoin  G  to  build  the  i!\u  Hiii^-ln  n-i  fiir  M,  but  ll.:it  M  told  him  to 
continue  to  work  at  the  dam,  and  not  to  mind  the  house,  as  he  could  n-.afce  a  shilt  \»iih  the  counting 
room  m  the  milt,  which  lie  occupied,  and  deceived  that  itansvu  te<l  his  purposes  very  well,  ni.d  that 
theie  wss  no  occasion  to  build  the  dwelling- house  until  it  suited  the  roiiVLiiimce  of  G.  Held,  that 
the  fonstraelion  of  the  agreement  is  a  mailer  of  law  to  lie  determined  by  tlie  court  '1  li^t  |>uio!  evi- 
dence may  be  admitted  to  exp'ain  doubtful  parts;  but  no  evidence  can  be  admitted  to  prove  the 
a;-r.-i  incut  diftiivnt,  01  to  piove  any  ndtiitiunal  agreement  nut  included  in  or  touched  upon  in  tlip 
Hyrcemeiit  1'hal  the  <  videi  <•<  oiler  i  <i  ilnl  noi  <iis  </IM  or  fXtillRUi^h  the  conn  net,  or  bar  the  pliiintift"'* 
c.-itre  of  action  :t^;i. nst  the  defendant  lor  the  Imach  in  i.ol  but. dint;  the  house;  that  it  Mas  only  a 
eonseut  to  a  temporary  susneiibion  of  llie  builJing  of  the  d\\tlung-houie,  and  i-.  only  pioper  in  miti- 
gatinn  <if  damages 

Heiii  alio,  thut  at  the  time  of  bringing  ihe  action,  the  plaintiff  had  a  CHUSC  of  .tctiun,  beingj  depriv- 
ed of  the  IK  i.t  tits  under  the  coi.tnu-t 

Helrl  8l«»,  that  the  covenant  on  the  part  of  the  (U  fondant,  that  the  jilaintifl  should  receive  one 
h»il  ot  the  profits  of  the  mill,  is  an  independent  covcnur.t;  and  tliRt  it  wsi  bo|  incumbent  on  the 
plaintiff,  to  entitle  himsc.f  to  a  recovci \s  io  prove  a  compliance  with  or  luililiaei.t  of  every  stipula- 
tion in  the  covenant  on  hi-.  )>ur'.  lo  be  performed 

Held  also,  that  it  was  not  necessary  for  the  pliiintifT,  in  order  to  support  his  action,  to  prove  that  I* 
took  up  his  residence  at  the  mill,  and  supeiinlended  the  same  as  miller,  and  devireti  h;»  un.eand  at- 
tention to  the  mill,  in  such  luai.r.cr  as  is  u-i.»l  tor  nun  under  varvs   to  do    purliiulur  woiU,-  (hat   In* 
kept  a  ri'KU  ar  s.  t  of  hook«,  in  v.hieh  veie  tojil^inid  ail  ihe    Iransactibtts   of  she   copartnership,  aji^^ 
that  he  effeetrd  a  set  t|.  mem   of  the  pai'tnt  i-hip  iiccouins  a;  iht  ei.il  of  the  year  i7S*h,  or  that  he  \.  a«  - 
prevented  from  doing  so  by  the  defendant     'I  hut  it  v.  j»s  onl\  i  •  its-nry  l.>r  ihe  |<lainiiil  lo  piove  tlint 
he  did  enter  upon  ihe  manapfement  and  suptrinUi;dance  or  the  mill  according  lo  ihe  covtiifaiit,  ai:d 
did  wi.i-k  and  iiianugv  the  same 

Hctri  also,  that  lor  withholding  from  the  plaintiff  the  one  hn!f  of  the  profits  of  the  null,  he  could 
only  iecover  Ihdtfor  from  the  tune  when  such  withholding  oi  the  profit*  first  cumu.enctd  Uo\vu  lo 
the  time  when  the  action  was  brought 

Held  also ,  thnt  the  plaintiff  inipht  recover  damrpes  fcr  one  h»lf  of  the  nett  profits  nf  the  mill  ('.i.yn 
to  the  tinie  of  bringing  ilu-  artinn  on!);  ami  dunuip.-:  l"r  the  ejtctiiiK  mid  ti.riui  £  hmi  out  ol  iheyov- 
trssipii  of  of  the  mill,  and  fur  all  advantajfis  ai.d  beoeiiU  winch  mi^l.t  attt  ml  or  result  !rom  th-  pi>« 
se>sion  thereof,  during  the.  uuexpi  red  term  of  ten  5  ear*.,  nut  comun  liemleil  \\uhin  tlic  nett  pi.u'n, 
lit' the  mill:  ,ind  iliat  an  action  or  ;.ction*  may  be  bruii^'ht  bj  il:e  piaintilf  against  the  lUlei  dai.i,  for 
o^PKlf  of  the  nett  profits  which  might  have  bein  ma..i:,  or  inny  he  made  iivm  working  ihe  n.iil  un- 
der the  contract,  ti'ua.  Uie  llth  of  i'ebiuary  179S,  uurinK  l'11-  coi.iii.uunce  ol  ihi;  partnership  under 
the  same 

Held  also,  that  this  bping  an  action  founded  on  contract,  the  plaintiff  had  on  y  a  ri^ht  to  recover 
d:.mas<<i  lor  the  actual  lost,  injui>  nnrtincor.renieiHt.bj  him  suMained  h>  onasmn  of  the  b:-e:-.chi« 
oi'  coyenanl  assigned  by  him,  (exclusive  of  his  part  ol  the  prvfiu  ol  tlie  null.)  aeeording  to  thv  *li  ic 
of  the  circunisuinccs  existing  in  ihe  case,  -yuihout  rtlei-tnce  to  Uu- .Vrce,  il'ai.j,  With  »hu-U  the 
plnintiff  was  di-poursn-tl 

Ht'U  :i':s<i,  thHi  i;  wa»  no  ^rritiud  to  arrest  the  jui^nient  upon  the  venlici,  (wLiLh  wos  for  the  plain, 
tin,)  oecausi.  the  decl«i«uo»  suted.a*  u  U>«M«U  vu  llic  ^\n\  a£  '.lie  deiuiduiii,  ike  not  tntlosim  the 
42  u'ure,  of  lUiiU,  to. 


3  ,  \  3ES  IN  Tin:  rnnrr  OF  APPEALS 

cu!e  •  .i'.dni-.      I5e  it  rcmembeied,  that  the  parties 

J  aluie-aid  h:i\e  j^recd,  ami  by  tlies*-  present- do  ;ciec,eadi 
with  the  other,  th.it  tlu y  will  ie>p«-c«i\ely  do  and  perform 
the  follow  ii  niviit,  agreeable  to  the  ['lain  intent  and 

•leaning  thereof;  that  i-  to -ay,  it  i-.  agreed  on  the  part  of 
Slid  fjtillmi-Hiti  that  IK  wii!  j.ro\ide  all  the  necessary  ma- 
terials for  erecting  and  fmi-liing  said  mill, am)  delixer  them 
t'j  >ai<i  .I/.-/-M.-.O/I,  at  K»id  mill-seat,  in  i;m»d  order,  and  will 
aUi>  provide  for  said  J/nrri?nn,  and  his  woikim-u,  meat, 
drink,  washing  ami  lodging,  during  the  time  of  building  said 
inill;,the  rafters,  jois:  ..ml  biacei*,  to  be  sawed;  the 

will -house  to  be  -10  ieet  by  4j  feet,  or  15  feet  square,  I 
Morrison  shall  determine:  to  be  nwo  stoiies  high,  and  aa 
hipped  roof;  the  foundation  to  be  stone  work;  the  super- 
structure of  the  mill  to  be  framed  work,  and  weather  board- 
ed and  shingled;  a  counting  room  to  be  in  the  mill;  «inj 
said  Gtilluicay  to  find  a  proper  desk  for  the  same:  said 
Gallon-til/  to  provide  a  framed  or  hewed  logged  dwelling- 
house,  2-4  by  ilO  (Vet,  with  a  brick  chimney,  &t  said  mill, 
for  said  Morn  son  to  reside  in;  said  (itiUou-uy  further 
agrees  to  furnish,  in  due  time,  all  articles  necessary  to- 
wards putting  said  mill  in  complete  motion  to  do  merchant 
and  country  work,  as  said  Morrison  may  call  on  him  for 
them,  said  Murrinon  taking  (are  always  to  give  said  Gul- 
hu'tiy  sufficient  notice  to  enable  him  to  provide  the  same; 
said  M»ri-i»un  agrees,  on  his  part,  that  he  will  hew  the  tim- 
ber, frame  the  mill-house  as  before  mentioned,  weather 
board  it,  and  shingle  ihe  roof;  make  doors,  windows  and 
stairs;  make  two  water  wheels;  start  three  pair  of  burr 
8tuneK,four  bolting  cloths,  rolling  stifen  and  tan,  and  make 
hoisting  gecrs  within  ami  without,  and  boulting  chest. 
Jtern.  Said  jlwrtison  ergages  to  complete  the  abo\e  work, 
after  the  proper  foundation  walls  are  built,  for  the  sum  of 
£450  current  money.  Jtcin.  It  is  agreed  on  the  part  of 
said  Morrixnn,  that  he  will  take  up  his  re.-ideuce  at  said 
mill,  in  the  dwelling  house  aforesaid,  and  will  act  as  the 
manager  and  superintendaiit  of  said  mill,  which  i*  to  be 
v.orked  f«»r  the.  joint  benefit  atid  advantage  ot  Kiid  . 
son  and  Gu/lmcai/.  in  equal  parts;  that  is  to  say,  said 

to  receive  one  half  of  the  nett  profits,  and  said  Guf- 
the  other  lujf:  saiu  Murrimm  \u  engage  the  neccsia- 
-  to  be  employed  in  working  said  mill,  and  to  re- 
Buove  them  whenever  he  thinks  proper;  the   uioavy  capital 


OY  MARYLAND.  4G3 

for  the  use  of  said. copartnership  to  be  provided  in  equal  1809 
proportions  by  said  parties.  It  is  further  agreed;  that  this 
copartnership  shall  commence  ds  soon  as  the  mill  shall  be 
ready  to  do  work,  and  shall  continue  between  the  parties 
aforesaid  for  the  space  of  ten  years;  but  it  is  understood, 
that  in  case  of  the  death  of  said  Morrison  before  the  end 
of  said  ten  years,  then  this  copartnership  is  to  be  dissolv- 
fed  immediately  after  such  event  shall  take  place.  It  is 
agreed  that  a  regular  set  of  books  shall  be  kept,  which 
shall  contain  all  the  transactions  of  the  copartnership,  and 
a  settlement  ot  the  partnership  accounts  shall  be  effected 
at  the  expiration  of  every  year.  It  is  understood  between 
said  parties,  that  said  Morrison  shall  never  claim  any  wages 
for  his  management  and  superintendance  of  said  mill,  and 
the  said  business;  nor  shall  said  Galloway  ever  charge  said 
JHorrison  with  any  rent  for  the  use  of  the  said  mil!:  but 
that  the  one  shall  always  be  considered  as  a  full  satisfacti- 
on f;jr  the  other;  the  firewood  shall  be  furnished  from  the 
farm  on  which  said  Galloway  now  resides,  for  the  use  of 
two  fire  places  in  said  mill  and  dwelling  house,  at  the  equal 
cost  of  the  said  parties  for  cutting  and  hauling  it  to  said 
houses;  and  12  acres  of  land,  including  two  acres  of  bot- 
tom land  most  convenient  to  said  Morrison,  to  be  put  un- 
der good  and  sufficient  fence  for  his  use.  The  hogs  that 
may  be  supported  by  the  sweepings  and  offals  of  said  mill 
shall  be  considered  as  the  joint  property  of  the  parties 
albtesaid;  and  the  said  Galloway  is  to  employ,  at  his  ex- 
pense, a  person  to  get  the  shingles  to  cover  said  mill  and 
dwelling-house.  In  testimony  whereof  the  parties  afore- 
said have  hereto  set  their  hands,  and  affixed  their  seals, 
the  day — .Said  Galloway  agrees  to  pay  to  said  Morrison  such 
money  as  he  shall  require  during  the  time  he  is  engaged  in 
the  building  of  said  mill,  and  the  balance  of  his  account  at 
the  time  of  completing  the  same. "  It  was  signed  and  sealed 
by  the  parties.  The  declaration  alleged,  that  although  the 
plaintiff  had  well  and  truly  done  every  thing  on  his  part  to 
be  done,  according  to  the  funn  and  effect  of  the  covenant, 
and  did  well  and  faithfully  complete  the  mill  on  the  21st 
day  of  June  1798;  and  although  he  was  always  willing 
and  ready  to  take  up  his  residence  at  the  mill,  in  the  dwel- 
ling house  mentioned  in  the  article*  of  agreement,  and  of- 
fered so  to  do;  and  although  he  was  ready  and  willing  at  all 
times  to  act  as  thej»ana£er  and  superintciidant  of  the  mill, 


CASES  IN  THE  COURT  OF  APPEALS 

ftiul  offered  «tf»  to  «lo;  ami  he  was  always  ready  ami  Billing 
to  k»-«*p  a  *et  of"  books  to  contain  the  trans.u -linn-  of  the  co- 
j-;u  Mn-r>hip,  ;iiul  that  a  settlement  of  the  partnership  ac- 
rounts  should  be  effected  at  the  expiration  nf  each  year — 
Yet  the  def'Midant  did  afterwards  to  wit,  on  the  31  st  day  of 
January  ITOn,  at,  &c.  forcibly,  ami  again>t  th»  rmwnt  nf 
the  plaintiff,  eject  and  turn  him  from  the  mill  and  premi- 

:.  1  always  hitherto  hath,  and  still  doth,  keep  him  from 
the  same;  nor  did  the  defendant  provide  a  framed  or  ! 
Joiijrrd  dwelling  hou-se.  21  by  CO  feet,  with  a  brick  rhiinney, 
ut  the  mill,  for  the  plaintiff  to  reside  in,  according  to  the  co- 
venant: lint  the  defendant  afterwards,  &.c.  after  the  mill  \v;<> 
complete,  and  put  into  complete  motion,  did  prevent  the 
plaintiff  from  receiving  one  half  of  the  nett  profits  of  the 
mill;  but  ton  defendant  did,  contrary  to  the  consent  of  the 
plaintiff,  receive  the  whole  profits  for  a  long  space  of  time, 
.vit,  fiom,&.r.  until  the  day  of  the  impetration  of  the  <>ii- 

writ  in  this  cause,  and  hath    refined  '  deli- 

ver any  part  to  the  plaintiff,  although  often  requested  so  \tr 
do.  And  the  plaintiff  in  fact  avers,  that  the  one  half  «[ 
the  nett  profits  of  the  mill,  for  the  time  aforesaid,  was  and 
still  is  of  the  value  of  £2000  current  money,  to  wit,  £c.  of 
wVuh  the  defendant  had  notice.  Nor  did  the  defendant 
furnish  the  pl.iintifl  with  12  acres  of  land,  including  t\vff 
acres  of  bottom  land  most  convenient  to  the  plaintiff,  under 
•jood  and  sufficient  fence,  for  the  plaintiff's  use,  but  wholly 
refused,  and  still  d»»th  refuse,  to  furnish  the  land,  or  any 
part  thereof,  as  by  the  articles  of  agreement  he  was  bound 
to  do;  and  so  the  plaintiff  saith  that  the  defendant  hath  not 
performed,  fulfilled,  kept  and  observed,  the  covenant  h»  - 
tween  them  made,  but  has  broken  the  same;  and  hath  hi- 
therto wholly  refused,  and  still  doth  refuse,  to  perform  it  to 
the  plaintiff;  wherefore  the  plaintiff  saith  he  is  injured,  and 
hath  sustained  damage  to  the  value  of  £.1000  current  money, 
&c.  It  was  agreed  between  the  counsel,  to  enter  a  gene- 
ral plea  or  performance  of  all  the  covenants,  and  take  is- 
sue thereon,  with  leave  to  the  defendant  to  give  any  thip^ 
in  evidence  which  he  might  have  pleaded  in  bar;  and  that 
all  errors  should  be  released  except  substantial  errors  in 
the  declaration. 

1.  At  the  trial  in  the  general  court  at  May  term  1801, 
Itrnni*  2Jini.«.;i  witMM,  proved,  Hut  in  the  summer  ITPf 
he  received  order*  frym  the  defendant  to  build  the  dwel- 


OF  MARYLAND.  405 

ling-house  in  the  declaration  mentioned,    and  to  take  the        1809. 
slaves  of  the  defendant  to  get  and  prepare  the  logs  for  that 
purpose,  and  t«  put  them  up.     This  direction  was  commu- 
nicated to  him  by  letter,   the  defendant  being  then  absent 
from  home  at  Bath,   in  Virginia.     That  he,   the  witness* 
was  at  that  time  at  work  with  the  slaves  of  the  defendant 
upon  the  dam  for  the  mill.     That  the  witness  being  about 
to  execute  the  above  orders   of  the   defendant,    told   the 
plain  tift'  that  he  was  about  to  take  away  the  hands  of  the 
defendant  from  the  dam;  the  plaintiff*  asked  for   what,  he 
told  him  to  build  his  house;  the  plaintiff  told  him  to  conti- 
nue to  work  at  the  dam,  and  not  to  mind  the  house,    that 
he,  the  plaintiff',  could  make  a  shift  with  the  counting  room 
finished  in  the  mill;  that  in  consequence  of  this  request  of 
the  plaintiif,  he  at  that  time  refrained  from   building   the 
house,  and  continued  working  upon  the  dam  until  the  cold 
weather  prevented  him:  that  lie  began  again  to  work  upon 
it  in  the  spring  1798,  and  did  not  finish  it  until  some  short 
time  before  the  mill  was  completed,  which  was  on  the  21st 
of  June  1798.     That  the  witness  was  the  overseer  of  the 
defendant  for  the  years   1797,  1798,  1799.     That  he  ne- 
ver after  received  any  instructions  from   the  defendant  to 
get  the  logs  for  the  house,  and  that  none  were   ever  got. 
That  at  this  time  the  plaintiff  was  a  single  man,    and  that 
the  room  in  the  mill  was  a  large  comfortable   room,  with  a 
fire-place  in  it.     The  defendant   then  proved,    that  after 
the  mill  was  completed,  the  plaintiff  occupied  the  room  in 
the  mill,    and    in  conversation  with  Peregrine  Fitzhugh, 
declared  to  him  that  the  room  answered  his  purposes  very 
well,  and  that  there  was  no  occasion  to  build  the  dwelling- 
house  until  it  suited  the  convenience  of  the  defendant.  The 
plaintiff  offered  no  evidence  to  the  jury  that  he  ever  called 
upon  the  defendant  to  build  the  dwelling  house,  or  request- 
ed it  to  be  done.     That  on  the  3lst  of  January  1799,  the 
defendant  dispossessed  the  plaintiff  of  the  mill,  and   kept 
him  out  ever  after.     On  these   facts  the  defendant  prayed 
the  court  to  direct  the  jury,  that  the  plaintiff  had  no  cause 
of  action  against  him  for  the  alleged  breach  of  covenant  in 
not  building  the  dwelling-house. 

Masnn  and  ./.  Buchanan^  for  the  Defendant,  cited  Jones 
vs.  Barkley,  2  Doitgl.  684,  687;  and  1  Roll.  M.  453, 
•N.  pi.  5.  ' 

VOL.  n,  -59 


405  t'A>t:-  IN  THK  CorRl  OF  APPEALS 

1809  Martin,  (Attorney  General,)  for  the  Plaintiff,  cited  LI  I 

^^      tier  vs.  /Miami,  3  T.  72.  590. 

Momma 

CHASE,  Ch.  J.  The  construction  of  the  agreement  is  a 
matter  of  law  to  be  determined  1-v  ihe  court.  Evidence 
may  be  admitted  to  explain  doubtful  parU:  but  no  evidence 
can  be  admitted  to  prove  the  agreement  dilll-rent,  or  to 
prove  any  additional  agreement  not  included  in,  or  touch 
cd  upon  in  the  agreement. 

The  court  cann-it  give  th.-  direction  prared  bv  the  de- 
fendant. They  are  of  opinion,  that  the  evidence  otiired 
did  not  dissolve  or  extinguish  the  contract  in  this  case,  nor 
bar  the  plaint'iif*  cause  or  right  of  action,  against  the  de- 
fendant, for  the  breach  in  not  building  the  house;  that  it 
was  only  a  consent  to  a  temporary  suspension  of  the  build- 
ing of  the  dwelling-house,  atrn  is  only  proper  in  mitigation 
cf  damages.  The  defendant  exempted. 

2.  It  appeared  in  evidence,  that  the  mill  was  completed 
on  the  21st  of  June  1798,  and  continued  in  the  poi-r-Sion, 
and  under  the  direction  of  the  plaintilV  exclusively,  until 
the  3  1st  of  January  1799.  That  on  this  last  day  the  defend- 
ant dispossessed  the  plaintiff,  and  from  that  time  only,  \\ 
held  from  him  any  share  of  the  profit?.  That  on  the.  1  1th 
of  February  1799,  the  plainlifTinstituted  this  his  suit  against 
the  defendant.  The  defendant  then  moved  the  court  to 
direct  the  jury,  that  when  this  suit  was  instituted  the  pl.iin- 
lill  had  no  cause  of  action  against  the  defendant  for  with- 
holding the  profits  of  the  mill. 


ir,  Ch.  J.  At  the  time  of  bringing  the  suit,  the  plain- 
tift'had  a  cause  of  action,  bein«;  deprived  of  the  henefii*uu.|.-- 
the  contract.  The  court  cannot  gire  the  direction  prayed. 
The  defendant  excepted. 

3.  The  defendant  then  moved  the  court  to  direct  the 
jury,  that  the  covenant  on  the  part  of  the  defendant,  that 
the  plaintiff  should  receive  one  half  of  the  profits  of  the 
mill,  is  dependent  on  the  covenant,  on  the  part  of  the  plain- 
tiff*, to  take  up  his  residence  at  the  mill,  to  superintend  its 
management  and  direction  for  the  joint  benefit  and  advaife 
ta^e  of  both  parties,  to  commence  a  mpartncuhip  as  soon 
as  the  mill  should  be  put  in  motion,  and  to  keep  a  regular 
set  of  books  containing  all  the  transactions  of  the  partner- 
ship concern  j  and  that  the  plaiutin",  to  entitle  himself  to  a 


OF  MARYLAND.  467 

recovery  of  one  half  of  the  profits  of  the  mill,  must  prove       1809 
that  he   performed  his  covenant  in  all  its  parts,  or  that  he      ^— C— -* 

.  i         i    (•  Morriitn 

was  prevented  from  doing  so  by  the  defendant.  »•» 

QuUuwaj 

J.  Buchanan  and  Warfiehl^  for  the  Defendant,  cited 
Jones  vs.  Tiarkley^  Dougl,  G84,  G90.  £sp.  Dig.  284,  285j 
and  Gluzebrook  vs.  K'oodroWy  8  T.  1L  SG6. 

CHASE,  Cli.  J.  The  court  are  of  opinion,  that  the  cove- 
nant in  this  case  is  an  independent  covenant,  and  that  it  is 
not  incumbent  qu  the  plaintiff,  to  entitle  himself  to  a  reco- 
very, to  prove  a  compliance  with,  or  fulfilment  of,  every 
stipulation  in  the  covenant  on  his  part  to  be  performed. 
The  court  therefore  refuse  to  give  the  direction  prayed. 
The  defendant  excepted. 

4-  Upon  the  rejection  of  the  testimony  of  the  subscrib- 
ing witness  to  the  agreement  as  to  the  ideas  of  the  parties 
respecting  the  agreement,  and  upon  the  statement  in  the 
second  bill  of  exceptions,  the  defendant  prayed  the  court 
for  their  opinion  and  direction  to  the  jury,  that  by  the  true 
construction  of  the  articles  of  agreement,  the  plaintiff  was 
bound  to  take  up  his  residence  at  the  mill,  and  superintend 
the  same  as  miller,  and  to  devote  his  time  and  attention  to 
the  mill,  in  such  manner  as  is  usual  for  men  under  wages 
to  do  particular  work.  That  the  plaintiff  was  bound  to  keep, 
and  prove  that  he  kept,  a  regular  set  of  bookst  in  which 
should  be  contained  all  the  transactions  of  the  copartnership, 
and  that  he  «vas  bound  to  effect  a  settlement  of  the  part- 
nership accounts  at  the  expiration  of  the  year  1798;  and 
that  unless  he  does  show  that  he  has  done  this,  or  that  he 
•was  prevented  from  doing  so  by  the  defendant,  he  cannot 
sustain  an  action  against  the  defendant  upon  this  covenant, 
for  dispossessing  him  of  the  mill  on  the  31st  of  January 
1 799,  and  depriving  l\im  of  the  share  of  its.  profits  from 
that  time. 

CHASE,  Ch.  J.  The  court  cannot  give  the  direction  pray- 
ed. They  are  of  opinion,  that  it  is  Bot  necessary  for  the 
plaintiff  to  prove  any  of  the  facts  above  specified,  to  sup- 
port this  action,  except  thckt  he  did  enter  upon  the  ma- 
nagement and  superintendence  of  the  mill,  according  to  the 
covenant,  and  did  work  and  manage  the  same.  The  de- 
fendant excepted. 


468          CASES  IN  THE  COURT  OF  APPEALS 

1809  5.   The  defendant  then  prayed  the  court  for  their  direc- 

tion to  the  jury,  that  if  they  should  be  of  opinion  that  the 
plaintiff*  WHS  entitled  to  recover  from  the  defendant,  for 
hU  withholding  from  the.  plaintiff  th»-  one  half  of  the  profits 
of  the  mill,  that  he  could  only  recover  therelor  from  the 
time  when  such  withholding  of  the  profits  first  commenced, 
down  to  the  time  when  this  suit  was  brought. 

THE  COURT  gave  the  direction  accordingly. 

C.  The  defendant  then  prayed  the  opinion  of  the  court, 
and  their  direction  to  the  jury,  that  for  the  breach  stated 
by  the  plaintiff,  in  turning  him  out  of  the  mHl  on  the  f>l-t 
of  January  1799,  and  keeping  him  out  thereafter,  he  can 
only  recover  damages  for  the  actual  deprivation  of  his  pos- 
session, and  the  continuance  of  that  deprivation  down  to 
the  bringing  of  the  suit,  and  not  further;  and  that  for  all 
the  subsequent  damages  which  the  plaintiff  hath  MMained 
for  being  deprived  of  the  possession  and  profits  of  the  mill, 
subsequent  to  the  bringing  of  this  suit,  he  may  have  a  new 
action  against  the  defendant,  if  in  doing  so  the  defendant 
l.as  acted  contrary  to  law. 

Mason  and  Warfidd^  for  the  Defendant,  cited  3  JU\. 
Com.  157;  and  1  Jiac.  Jib.  tit  Covenant^  542,  546. 


Martin*  (Attorney  General,)  and  Slxift/f,  for  the  Plain- 
tiff, cited  A'urse  vs.  flams,  Sir  T.  Ittnjin,  77. 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  the  plain- 
tiff may  recover  damages  for  one  half  of  the  nett  profits 
of  the  mill  down  to  the  time  of  instituting  this  suit  only; 
and  damages  for  the  ejecting  and  turning  the  plaintiff  out 
of  the  possession  of  the  mill,  and  for  all  advantages  and 
benefits,  which  might  attend  or  result  from  the  possession 
of  the  same,  during  the  unexpired  term  of  ten  year?,  not 
comprehended  within  the  t;ett  profits  of  the  mill;  and  that 
an  action  or  actions  may  be  brought  by  the  plain  tiff  against 
the  defendant,  for  one  half  of  the  nett  profits  which  might 
Iitive  been  made,  or  may  be  made,  from  working  the  mill 
under  the  contract,  from  the  llth  of  February  1799,  dur- 
ing the  continuance  of  the  pat  tnei  ship  under  the  same. 
The  plaintiff  and  defendant  Oath  executed  to  this  opinion 
of  the  court. 


OF  MARYLAND.  469 

7.  The  defendant  then  prayed  )the  court  to  direct  the  1809. 
jury,  that  in  this  case  the  plaintiff  had  only  a  right  to  re- 
cover damages  for  the  actual  loss,  injury  and  inconveni- 
ence, by  him  sustained  by  occasion  of  the  broacl-.es  of  co- 
venant assigned  by  him;  and  that  this  being  an  action 
soundin«-  in  contract,  it  was  not  a  case  in  which  it  was 

O 

proper  for  the  jury  to  give  vindictive  damages. 

CHASE,  Ch.  J.  The  court  are  of  opinion,  that  this  be- 
ing an  action  founded  on  contract,  the  plaintiiT  has  only 
a  right  to  recover  damages  for  the  actual  loss,  injury  ami 
inconvenience,  by  him  sustained  by  occasion  of  the  breach- 
es of  covenant  assigned  by  him,  (exclusive  of  his  part  of 
the  profits  of  the  mill,)  according  to  the  whole  of  the  cir- 
cumstances existing  in  the  case,  as  they  appear  in  evidence 
to  the  jury,  without  reference  to  the  force,  if  any,  with 
which  the  plaintiff  was  dispossessed.  The  plain  till'  cx- 
cepted. 

Verdict  for  the  Plaintiff,  and  damages  assessed  to 
JE1G8  15  0  current  money.  There  was  a  motion  in  arrest 
of  judgment,  and  the  following  reason  was  assigned:  Be- 
cause the  plaintift  hath  stated  in  the  declaration,  as  a  breach 
of  the  covenant,  on  the  part  of  the  defendant,  that  he  did 
not  enclose  twelve  acres  of  land  most  convenient  to  the 
mill,  in  the  declaration  mentioned,  two  acres  whereof  was 
bottom  land,  and  cause  the  same  to  be  put  under  a  good 
and  sufficient  fence  for  the  exclusive  use  of  the  plaintiff; 
upon  which  pretended  breach  of  covenant  the  jury  have 
assessed  damages  to  the  plaintiiT,  when  in  fact  it  was  the 
duty,  by  t!:e  articles  of  agreement,  of  him  the  plaintiff,  anil 
not  of  (he  defendant,  to  have  enclosed  said  twelve  acres 
of  ground  at  the  joint  expense  of  the  plaintiff  and  defen- 
dant. 

Curia  adv.  'cult. 

Upon  the  abolition  of  the  General  Court,  this  case  was 
transferred  to  the  county  court  of  Washington,  in  which 
court,  at  October  term  1806,  judgment  on  the  verdict  was 
arrested  by  Shriver,  A.  J.  and  the  plaintiff  appealed  to 
this  court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  NICHOL- 
SON, GANTT,  and  EARLE,  J. 


i  fur  the  Appellant.     This  case  does  not  come  up 
ou  an/  of  tlie  bills  of  exceptions  taken  at  the  trial  of  the 


CA<K*  IN  THE  COURT  OF  AH'EALS 

caiue.      The  *ole  question   for  this  court  is,    whether   the 
county   court  vti.'   right    in  judgment   oij   the 

ilict.  The  breaches  in  the  declaration,  which  have 
heeu  made  (lie  ground  for  the  motion  id  arrest  ofjudg- 
men!,  juslati'tl  in  th»-  it-;i«.ojis  tiled,  arc,  that  "(lie  defeu- 
daut  did  nut  enclose  twelve  ac  res  of  lariti  mu>t  n  n\>  riient 
to,  the  mill,  in  ihe  declaration  itentioned,  t\\o  acres  where- 
of was  bottom  land,  and  cause  the  same  tu  be  put  uiidrr 
goo,l  and  r-ullicient  fence  for  the  cxclu-.i\e  use.  oi  the  j.l 
tiff.'*  NOW  the  declaration  does  not  allege  thehicuc.li  as 
stated  in  the  reasons.  The  breach,  as  laid  in  the  declara- 
tion, is  *'nor  did  the  defendant  furnish  the  plaiutitV  with 
12  acre*  of  land,  including  two  acres  of  bottom  land,  most 
convenient  to  the  plaintiff',  under  ^ood  and  sufficient  fence, 
fov  the  plain tilV's  use,  but  wholly  refund,"  \r.  in  the  unrd* 
of  the  agreement.  The  meaning  of  xvhicli  is,  that  Gallo- 

•••  \\a-  tu  furnish  the  land  i-tu •lo>ed,  a. id  that  it  was  not 
to  be  at  the  joint  expenae  of  the  parties.  'I  he  preceding 
clause  in  the  x-.nvmeot  saying,  that  the  firewood,  &.C, 
s>houW  be  at  the  equal  cost  of  the  partita,  did  not  make  it 
a  covenant  that  the  12  acres  should  be  enclosed  at  the  joint 
expense.  They  ate  separate  covenants.  It  is  not  usual  for 
a  man  to  covenant  to  furnish  himself;  and  as  this  was  for 
the  benefit  of  Morrison,  it  must  be  Galloicay's  covenant. 
The  costs  of  cutting  the  firewood,  £c.  has  nothing  to  da 
\vith  what  follows  respecting  the  land  to  be  enclosed.  Af- 
ter verdict,  the  court  are  to  infer  from  the  expressions  in 
the  declaration,  that  Gitlloicay  did  not,  according  to  the 
agreement,  furnish  the  land,  and  enclose  it  as  by  the  co- 
Y«;<aut  he  was  bound  to  do,  ami  that  the  jury  found  that  he 
did  not  furnish  and  enclose  according  to  the  covenant.  The 
<tei!.ira(iou  does  not  state  at  whose  expense  the  enclosing 
vag  to  be.  It  was  to  b«  done  for  .the  use  of  Morriso.i. 
The  firewood  was  to  be  furnished  at  the  equal  expense  of 
the  parties. 

If  the  judgment   is  reversed,  by  the  act   of  1800, 
09,  this  court  are  to  give  such  judgn  court  below 

ought  to  have  given.  The  j-nl^mont  her*'  has  been  arrest- 
ed, ai-d  if  the  judgment  o)  .trrest  is  reversed,  unless  the 
court  give  judgment  under  this  act,  tli«  appellant  has  na 
u-medy  but  anew  action. 

'/'.  titt'lutHan,  for  the  Appellee.    The  only  question  a« 
to  the  cvQAtructiuu  of  the  agreement  is,   whether  the  kttid 


OF  MARYLAND.  471 

vras  to  be  enclosed  at  the  joint  expense  of  tlie  parties?  1800. 
The  declaration  goes  upon  the  ground  that  the  enclosure 
was  to  be  made  solely  at  tfattoway**  expense,  when  the 
ngrecment  does  not  so  provide,  but  \vhcn  it  may  be  inferred 
that  it  was  to  be  at  the  joint  expense  of  both,  aud  Was  in 
be  taken  as  a  mutual  covenant.  In  the  agreement,  where 
any  act  was  to  be  done  at  the  expense  of  either  of  the 
parties,  it  is  so  stated.  Hence,  it  not  beiirg  otherwise  pro- 
vided, the  inference  is,  that  the  enclosing  the  12  acres,  6cc. 
was  to  be  at  the  joint  expense  of  both.  The  firewood  \v:is 
to  be  furnished  at  the  joint  expense,  am!  the  land  to  be 
enclosed  at  the  like  expense.  There  is  no  reason  why  the 
expense  in  the  one  case  should  not  be  boi'ne  as  in  the 
other.  In  this  case  the  appellee  took  a  number  of  bills  of 
exceptions  at  the  trial.  He  did  not  let  the  judgment  go 
against  him  on  the  verdict,  and  rely  on  the  errors  in  the 
opinions  given  in  the  exceptions,  but  moved  to  arrest  the 
judgment,  which  w.is  done,  and  the  cause  is  now  in  this 
court  on  the  plaintiff's  appeal.  If  the  judgment  is  revers- 
ed, and  such  a  judgment  given  as  the  court  below  ought  to 
have  entered,  the  appellee  will  be  precluded  from  thti  be- 
nefit of  his  bills  of  exceptions. 

£&ftin,  in  reply,  was  stopped  by  the  court. 

• 

JUDGMENT  REVERSED,  AND  JUDGMENT  POR  THE  APPB*,- 
LAXT  ON  THE  VERDICT,  &C. 


Sairra,  et  al.  vs.  THK  STATE*  DECEMBER* 

APPEAL  from  a  decree  of  the  Court  of  Chancery.     Bill  K  nJ  «';.e  acts  of 

tonfi^patir.n,      ilie 

filed  in  the  name  of  the  state,  at  the  instance  and  for  the^^^Ji;];^1 
use  of  Carroll  and  Maccubbin.  ^J^A-o,^- 

rated    without  of- 

HANSON,  Chancellor,  decided,  that  by  the  act  of  Oetobt  rV,'y,  ''.,1  'oik"'  ',«•" 
IT&O,  ck.  45,  "to  sfi'/.o,  confiscate  and  appropriate,  411  "fch  'equitable  in: 
Rritiah  property  within  thia  state,"  ;md  the  act  of  the  same  J'-sniv,  r1(t  mail 

.      .  l»iif,"iiftet  the  tiea- 

session  cn,  49)  "to  appoint  commissioners  to  preserve  con-  fjrrfvw** 


/irilish  property,'-'  the  equitable  interests  of  British 
subjects  in  lands  were  confiscated  without  office  found*  or 
entry  or  other  act  done,  and  although  such  equitable  inte- 
rests were  not  discovered  until  long  atrer  the  treaty  of  pt-uae 
between.  Great  Britain  and  the  United  Slates.  '^Scetht  dc- 


47*  CASKS  IN  T1IK  t  'M  !iT  OF  APPEALS 

1JQ9        tree  of  thr  chancellor,  as  reported  in  6  Cranch,  286.]  From 

v->"~v"^      Tiiat  decree  the  liefeini :  ited  to  this  court. 

• 

The  car.-  .it'll  before  CHASE,  Ch.  J.  B. 

Ni'  I  G      IT,  J.  by 

\ 
(Attorney  (inieral,)  for  the  Appellants;  and  by 

/>  for  the  Appellee. 

DECREE  AH  IK 


'J|ic  appellants  bnv^lit  a  writ  of  error  to  the  Supreme 
Court  of  the  Unite<l  Mulct*  where  the  decree  of  this  court, 
aiurmin^  fh.it  of  the  court  of  chancery,  was  aflirmed. 
6  Cra/icA, 


Tut  ATTORNEY-GEXERAL  vs.  JARRETT. 

APPKAI.    from   a  decree  of  the  Court   of  ( 
'  ><,'  the   l»ill  of  cmiHilaint  which    v  _'it    in  the 

'.i'".'!i.  flihL'  namc  °*  tjic  «/fr'»r'"V/  (if')ir.i-<tt,  at  the  relation  of  //«.•,/,    to 
i:it  tibtained  by  Jarred  for  a  tract  of  land  call- 
VT'w^e'l  BefgraJe.     The  facts  h  the  case  were  these:   T.i 


'.indK/rt'or^  /*//<N—  On  the  !3i]io!M%  1794,  A  7rtr»T//  retunu'd 
i  certificate  of  survey  to  the  Ian.  I  o.Tice,   for  the  land  call- 

•irt.  J    ft  J.       i      n    ,  ,  /,.      *~        .>  ,     •      • 

•tidc»u-<!iii.-ini>j  eel  BtigradCi    (lln-  first,)   containing  10.SO  acres.     On  the 
:)th  of  February  1793,  H  cvt  obtained  a  proclamation  war- 

t-nnt-d     a     pnip|»-  . 

MMHonwm»ntnn  rant  thereon,  no  person  baring  proclamatcu  tnecertin 

... 
.,i,.i  MiMOn  the  2-2d  ot  May  1793,  West  returned  a  certificate,  un- 

Jt   4'.  ai.rl    1.  1  <    u 

l«r  his  proclamation  warrant,    and  called   the    land    The 


A>/i,  conlaiiiin^  -2J8  acivs.   On  (lie  9th  of  May  \ 
.:'!,•*,;  tlie  coiTi|)osi!i(in  !.v)iH-y    v.;i-  paid  by  IVe.xt.     On  the  3d  of 
.,;.;.  tune.  1799,  Hrs/'.i  cerlii;  ited  by  .9.  J,t 

in  the  10th  of  Felmutry  1800,  the  judge  of  the    land  <,f- 
!C!'UV  i':e,  on  a  hearing  uf  the  caveat,   pis^eil  an  order    for   cor- 


e,  by  excluding  part  of  a  tract  of  land 

•ii!-nl*  v.  hii;h  appeared   to  b- 

i'Mi'-d  ill  the  certilicate  of  Tlie  //,"r/,v/.//j.     On    (In-  .101  !i 
of  June  1800,  a  corrected  certificate  was  returned  bv  Jrr.9t. 

ra»«aii-1    I.-,      ili- 

^-.containing  '200  acres,   excluding  28  an -.--.    j.ntut  John- 
iiiri.Mi  .hi.'rcr  a0n's  :  ,,-nt.     On    the    10th    of  October  1800,    the 

>    K'.ii.l    Hi 

(ed  certificate  was  caveatcd  by  J.  Jar  ret  t,  the  il 

* 

>.i  the  uarae  of  tb:  titorm-y  genera!,  it  the  nHf 

'.  iliui  .ri  •  bUl  Ue  J>i 


OF  MARYLAND;  473 

dant;  and   on  the  20th   of  April  1801,   the  judge   of  the        1809 
land  office  ruled  the  caveat  good;  and  a  grant  was  refused      ' — * — J 

,      ,  ...     Altorni-y  General 

to  West,  because  tnc  land  was  included  in  another  certm-  >-. 

J&rri'tt 

cate,  and  granted  to  the  defendant  by  the  qame  of  Bel- 
grade, (the  second.)  This  certificate,  of  Belgrade,  (the 
second,)  the  relator  alleged  was  younger  than  West's,  and 
that  the  grant  was  obtained  thereon  during  the  contest  un- 
der the  caveats.  That  the  defendant  had  notice  of  West's 
certificate. 

The  Defendant's  tide— On  the  1st  of  A  ay  1798,  A.  Jar- 
reit  returned  to  the  land  office  another   certificate   of  sur- 
vey for  Belgrade^  (the  second,)  containing  767  acres,   un- 
der a  warrant  of  resurvey  issued  on  the  8th  of  May  1797, 
to  resurvey  Wild  Cat  Den.     On  the  10th  of  May  1798,  A 
Jarrett  proclamated  his  own  certificate  tor   Belgrade,  (the 
second.)     On  the  29th  of  April  1799,  A.  Jarrctt  returned 
a  certificate  under   the  proclamation  warrant,    and   called 
the  land  Belgrade,  (the  second,)  containing  92  acres,   ex- 
cluding the  rest.     Un    the  8th  of  May    1799,   A.  Jarrett 
compounded  on  this  last  certificate.     On  the  30th  of  Sep- 
tember 1799,  the  certificate  was  cavcated  by  West.  On  the 
10th  of  February  1800,  the  judge  of  the  land   office   dis- 
missed the  caveat  of  West}  and    on  the  20th   of  October 
1800,  a  grant  issued  on  the  certificate  to  the  defendant,  he 
having  obtained   an   assignment   thereof  from  A.  Jarrett. 
The  bill  prayed  that  the  grant  for  the  land  called  Belgrade, 
issued  to  the  defendant,  might  be  vacated,  and  for  further 
relief,  &c. 

HANSON,  Chancellor,  (February  term  1805J  Decreed, 
that  the  bill  of  complaint  be  dismissed,  but  without  costs. 
From  this  decree  the  complainant  appealed  to  this  court. 

The  case  was  argued  at  June  term  1808,  before  POLK, 
BUCHANAN,  NICHOLSON,  and  GANTT,  J.  by 

ffall  and  T.  Buchanan,  for  the  Appellant;  and  by 
Johnson,  (Attorney-General,)  for  the  Appellee,  and  was 
reargued  at  the  present  term  before  CHASE,  Ch.  J.  BUCHA- 
NAN, GANTT,  and  EAULE,  J. 

T.  Buchanan,  for  the  Appellant,  cited  Land  Hold.  Ass. 
186,  275,  559,  362,  319,  361,  469,'  and  the  act  of  1785, 
c/i.  88,  *.  10. 

VOL    ii .  60 


CASES  IN  TIIK  COURT  OF  APPK  U.> 


rtin,  and  Jf'i'itnn.   (  Vttorney  (icn-n!  J    fur  t! 
pellet',  cited  The  Jllornry-dnicral  vs.  .V/iiwVr/i,    1  //,/,-  ,-. 


DEC-EMBER.  "U*iii.i\M3  vs.    HODOSOV. 

APPKAI.  from  a  decree  of  the  Court  of  Chancery.     The 
which   was   filed   by   the   appellee  irilliamn, 

"'.»IU  ''n'u.'r  (the  appellant,)  and  ./o/m   Clark?,    >i;ite.i   that    // f/ 

•  Tit'  .  .  . 

A  h.-mi (f,»pn hy  and    Clarke  entered  into  partnership  Under  the  name  of 
jimpie    contract  ,/oAn    CYarAe,    «$*   Co.      During   the   partnership,    C/.rr/.r 

<h  hi  rinr  from  itu- 

irtTtncrjto.t-mu-  bought  goods  from   the  complainant,    (Hodgson,)    which 

Inr.  and    urifpu-d 

••>  i,n,,  i,  in  .,,„-  Wcre  delivered   to   Clarke  on   account  of  the  parfm-i - 

nidun  of  law  a  re- 

5^'r'n?.fr.lh;nrtl\"  and  by  him  sold.     That   the  belief  that   JlWwi,^    i 
,Vm^tl"nco"!trnhrt  I«rtiier,  gave  credit  to  the  firm.     That  on  the  Tlh  of  Jnl\ 
^.•:l»w"IMli"  1797,  Clarke  settled  with  the  complainant,   and   the   «.•)- 
i.l*t.T"tiK0cm' cern  was  found  indebted  ^319  0  5,    fisjinia  m.r 
cVi,'ii-"rr  »rrV,.*  and  for  that  sum    Clurhr.  j^avp  bond  to  the  complainant,  in 
ofV»lTi!rr!n"rVt^  the  Dames  of  Clarke  and,  ff'illiama.  .'jointly  a:. d  se\t:rally.^ 

•  liniple  contruci  ,,.       , 

dc-bi..iuc  from.  h.  executed  by  Clarke  alone,  wgDeo/oAn  Clarke,  &  Co.    Iltat 

•  mwiud  for  relief  ^bftn  ClurltC,  &  Co.  bein;:  afu-r\vards  indebted  to  the  coin- 
in  '<|uily 

such  •  honj.  plainant  in  g598  34,  and  interest,  for  goods  sold  to  ./ 

tltfiourfi  not  tiin.l-  « 

buronUiepuriwr  Clarke,  for  and  or.  account  of  the  concern,  Clarke,  for  hii 

who  iliM-i  not  i-x- 

STU'tte^T- aild  HiM«ms,nn  the  18th  of  November  IT'.ir.  -ave  anotltei- 
^A'^mj.iain.nt  bond  to  the  complainant,  signed  JoJm  Clarke,  &  Co.  That 
.'";,'!;:!,,")'  Clarke  is  insolvent,  &c.     That  suits  were  brought  on  t),.- 
t^iofaj^i.Tobri- bonds  in  the  general  court  against    n'j///oj,:.v,  and   \veic 
f"r,'ixwin"th"u',.,,*  non  provtcil,  because  that  court  were   of  opinii>n  th;«t    cin-. 
(netrj""        "'  partner  could  not  execute  a  bond,  so  as  at  law  to  bind  his 
copartner,  unless  a  special  authority  for  -nch  pur|-« 
i-ti-d.     Prayer  for  a  disclosure  from  the  defendant*. 
ther  they  were  partners  or  not,  and  that  they  may  be  com- 
pelled to  account  with  and  pay  the  money  due  to  the  com- 
plainant, and  for  other  relief,  ^c.     The   <m*u-tr   ot 
limns  stated,  that  he  and  Ctnrkc  entered  into  partnership 
in  October  1795,  for  threv  yearn,  in   the  miUin^   and   dis* 
tilling   business.      Clarkr   was  directed    not  to  puc 
merchaml>7,e  on   ll'itliamtfs  account,  and  he  believes  that 
Clarke  sold  goods  on  h'n  own  account,     lie  due*  not  know 
whether  or  not  Clarke  bought  gomls  on  the  partnership  ar- 
CQunt,  and  if  he  did,  the  answer  insisted  that  the  dtlv  u 


OF  MARYLAND.  475 

dant  was  not  liable.  That  he  knew  nothing  of  the  settle-  1809 
racnt  or  execution  of  the  bonds.  That  suits  were  brought 
on  the  bonds,  anil  non  pressed,  as  stated  in  the  bill,  and 
that  Clarke  was  insohvnt.  That  the  partnership  was  dis- 
solved in  1798.  Clarkt  was  thy  acting  partner;  and  the 
defendant  never  bought  any  goods  for  the  partnership,  and 
he  does  net  know  the  consideration  of  the  bonds. 

Testimony  was  taken  under  commissions  issued  for  that 
purpose. 

The  answer  of  Clarke,  put  in  after  all  the  proof  was 
taken  and  returned,  admitted  all  the  facts  alleged  iu  the 
bill. 

KILTY,  Chancellor,  (February  term  1806.)  The  ob- 
jects of  the  bill,  as  stated  therein,  were  to  have  a  disclo- 
sure from  the  defendants,  whether  they  were  partners;  to 
compel  them  to  account  with  the  complainant,  and  pay  the 
money  due  as  charged  in  the  bill,  on  account  of  goods 
sold  to  them,  and  to  obtain  other  relief, 

As  aground  for  relief, the  complainant  states,  that  dur- 
ing the  continuance  of  the  partnership,  Clarke  gave  a 
bond  to  him  in  his  own  name,  and  that  of  WilliaMSt  for  a 
balance  due  on  account  of  goods  sold  to  them,  and  after- 
wards another  bond  was  given  on  a  similar  account,  on 
which  suits  were  brought  against  iniliams  in  this  state, 
and  non  prossett,  on  the  ground  of  such  bonds  not  binding 
him  at  lav/. 

The  answer  of  Williams  denies  the  partnership  to  the 
extent  alleged  by  the  complainant,  and  does  not  admit  the 
purchase  of  the  goods  by  Clurke;  the  settlement  or  execu- 
tion of  the  bonds.  It  admits  that  Clarke  is  insolvent,  and 
that  suits  were  brought  on  the  bonds,  and  non  pressed  as 
stated  in  the  bill. 

The  defence  set  up  is,  that  the  remedy,  (being  for  the 
price  of  goods  sold.)  is  at  law,  and  that  it  is  not  a  case  fur 
relief  in  equity,  and  that  the  bonds  relied  on  as  a  ground 
of  relief  by  the  complainant,  are  not  proved.  And  it  is 
also  contended  that  an  iisue  should  be  tried  as  to  the  part- 
nership, &c.  and  that  the  question  of  law  should  be  sub- 
mitted to  the  judges. 

The  counsel  for  the  complainant  relies  on  the  facts  dig- 
closed  in  the  case,  to  support  the  jurisdiction  and  the  re« 


CASES  IN  THE  KiruT  OF 

1809  lief  praved  fur;  and  also  contends  that  the  demand  being 
against  tin*  defendants  as  partners,  gives  tin-  c  >urt  of  equi- 
ty a  concurrent  power  with  a  court  of  law;  ami  so  as  fo  the 
prayer  for  a  discovery. 

Upon  tliis  question  of  jurisdiction,  tin-  case  is  attended 
•with  considerable  difficulty,  UK!  the  authorities  on  the  sub- 
ject  have  been  carefullv  examined  w'uh  a  view  to  its  deci- 
sion. 

The  position  laid  down  by  the  complainant  is  certainly 
too  broad.  A  prayer  lor  a  di-rnvery,  winch  is  maile  a  purt 
of  every  bill  in  calling  on  the  defendant  to  ai.  not 

give  a  jurisdiction  in  every  case,  nor  can  the  circumstance 
of  the  defendants  being;  partners  give  such  jurisdiction  in  a 
case  purely  determinate  at  law. 

If  therefore  the  complainant  had  merely  stated  a 
and  delivery  of  goods,  and  had  brought  his  bill  to 
the  price,  or  if  instead  of  a  bond,  a  note  unsealed  had  I 
given  by  Clarke,  the  complainant  would  not  have  be< 
ill  advised  as  to  have  prayed  for  relief  in  this  court,  or  it" 
he  had,  would  have  failed  to  obtain  it. 

But  there  are  circumstances  in  this  case  which,  under 
the  principles  recognized  by  courts  of  equity,  incline  the 
chancellor  to  think  that  the  jurisdiction  may  be  sustained. 

It  is  certainly  desirable  that  the  boundaries  between  the 
courts,  as  to  their  jurisdiction,  should  be  prescribed,  but 
they  are  not  in  all  cases  to  be  dearly  discovered,  and  a 
writer  of  eminence  observes,  that  "to  strike  out  the  distin- 
guishing principle  upon  which  courts  of  equity  in  such 
cases  have  proceeded,  would  be  indeed  extremely  useful. 
but  that  after  having  given  considerable  attention  to  the 
subject,  he  found  himself  incapable  of  reconciling  the  va- 
rious decisions  on  it."» 

In  addition  to  the  maxim,  that  matters  of  accoimt.f,-ati<l 
accident  and  mistake,  are  proper  objects  of  a  court  of  equi- 
ty, there  are  other  principles  which  require  to  IM?  consider- 
ed in  viewing  this  case.  Although  a  court  of  equity  will 
not  generally  give  relief  where  the  party  has  a  remedy,  or 
the  matter  is  properly  determinate  at  law,  yet  lo  prevent 
such  relief,  it  must  be  a  case  which  can  be  fully  invi-oi- 
gated,  and  receive  a  complete  and  effectual  deci.-ion  in  .1 
court  of  law,  and  the  remedy  there  must  be  clear  and  cer- 
tain. 


OF  MARYLAND.  4,77 


In  many  cases  a  court  of  equity  will  exercise  jurisdiction        1 809 
although  a  remedy  might  be  had  in  a  court  of  law. 

There  are  some  cases  in  which,  although  (he  complain-  »? 

Hou^tuu 

ant  might  have  a  remedy  at  law,  a  court  of  equity  having 
obtained  jurisdiction  for  the  purpose  of  discovery,  will  re- 
tain the  suit  for  the  purpose  of  giving  relief;  and  if  this  rule 
was  more  general  than  it  is,  it  would  only  be  an  extension 
of  the  principle  in  bills  for  account  of  assets,  which  are 
stated  to  have  been  originally  only  bills  for  discovery, 
which  could  not  be  had  without  an  account,  but  on  which 
the  courts  of  equity  have  made  complete  decrees,  and  given 
the  party  his  debt  likewise. 

Equity  jurisdiction  is  exercised  to  put  a  bound  to  vexa- 
tious and  oppressive  litigation,  and  to  prevent  a  multiplici- 
ty of  suits. 

It  is  exercised  where  the  courts  of  ordinary  jurisdiction 
arc  made  instruments  of  injustice. 

A  court  of  equity  will  lend  its  aid  whenever  by  fraud  or 
accident  a  person  is  prevented  from  effectually  asserting, 
in  the  courts  of  ordinary  jurisdiction,  rights  founded  on 
principles  acknowledged  by  those  courts,  and  where  par- 
ties by  contract  have  given  a  right,  but  have  not  given  a 
sufficient  remedy,  and  in  the  case  of  defective  securities 
for  money. 

The  present  case  may.  not  perhaps  come  under,  the  scope 
of  ail  these  principles,  but  there  are  some  of  them  which 
appear  to  be  applicable  to  it. 

Without  stating  particularly  the  evidence  in  the  cause, 
the  chancellor  is  satisfied  of  the  existence  of  the  partner- 
ship, as  alleged  by  the  complainant,  and  of  the  liquidation 
of  the  balance  due  for  the  goods  sold,  the  execution  of  the 
bonds  as  slated,  and  the  event  of  the  suits  on  them.  With 
regard  to  the  answer  of  the  defendant,  Clarke,  it  is  consi- 
dered, that  the  partnership  being  proved  by  other  testimo- 
ny, his  admissions  are  evidence  in  the  eamc  manner  as  his 
acts  would  be  in  the  exercise  of  the  joint  business  of  the 
firm.  And  it  may  here  be  observed,  t';iat  the  responsibili- 
ty of  one  partner  for  the  acts  of  another,  is  not,  as  stated 
by  the  defendants'  counsel,  a  principle  otskccr  mercantile 
law,  but  is  founded  in  justice  and  necessity,  and  is  inse- 
parable from  the  nature  of  partnership  transactions. 

It  appears  that  Clarke  executed  the  bonds  with  a  view  of 
ascertaining,  and  perhaps  of  securing  in  some  dcgcce,  the 
balance  due  for  goods  sold  to  the  company;  and  these  bonds 


(  VSES  IN  TUI.  *  01  ;;r  OF  AITKAI 


1&09         xrcrc  taken  by  the  complainant  iVoui  a  /..• 

..  it  eU'.-it. 

if  notes  had  1-een  v,t\en  by  (/;'.'/..,    \\  iiliin.it  »i-,»l,    as    m 
the  iv  ,  nnei>hip  l>:td  brm  piov- 

eil,  they   would  have    been    «  on  the    defendant, 

irUliviitS.  at  law.      Tin1  bonds    i.u;;;:.t    in-    riiM-ideied    iu 
equity  as  less  solemn  ami  obligatory    than    the  notes,    but 
•M>»'dv  sou»ht  for  on  the  bor^!-  •  !  by   v.h-it 

nloi-u  a  ahtcr  principle  i.f  law.      Ko1'  if  it  biv  j«; 
a«.  the  chancellor  conceives    if  to  bo,    th.it  the    ilttVnilant, 
ll'i'l.,  iiiiblc,  anil  nii^ht  have  m-eii  boniul  !•;,  • 

\vithoiit  seal,  for  the  sanu'  amount,    the  ilefnice    ?>ft  uj>  10 
tlie  bond-  was  i.ot  an  tnuitable  or  i-i.n-Lii-iiti»i:i«.  one. 

Iu  this  respect  then  the  court   of  Ia\v,    or  (as  expr- 
iu  one  of  the  pritu  iplca  above  stated,  j  the  court  of  ordinu- 

.nsdiction,  h;ts  been  made  the  instr'inii'nt  of  inj'i 
15\  the  (trr'ultnt.  <\^  it  may  be  termed,    of  the  balance    <i'ie 
being  v.'tuivd  by  l>omU,    the  coniplaiiiant    u.i>    , 
from    asserting    in  a  court  of  law  the   ri-Jit   of 
money    due    to    him    on   principles  acknovvied^v/d    by   uli 
courts. 

The  parties  who  purchased  the  £0!:iU  havo,    by  the   »u- 
ihorised  acts  of  one  of  them,    «;iveu    (by    their  ton!' 
a  right  \o  the  money  admitted  thereby  to  be  due,   but  h.i\e 
p\rn  a  uMiifdy  insufficiLMit  at  la»v,    by  sttJiitics,   iu    that 
••el,  dvlective. 

It  is  alleged,  by  the  counsel  f,»r  the  defendants,  that  the 
complainant,  if  the  money    is  due  to  him,   I,  an  a   full    and 
adequate  remedy  at  law;  and   to  prove  this,    he  contends 
that    the  bonds  an:  not  an    extinguishment  of  the  o; 
contract.     If  the  bonds  v.  ere  obligatory  on  dark?.  (\v|,u!i 
>>eeins  to  be  admitted!,)  it  i>  ditT.ciilt    to  »:;\  how  the 
nal  contract,  which  v.asa  joint  one,    remains  unimpaired, 
or  ln>v.   (  !:••/•,  •!   -L-M  ut,  would  be  liable  on  both. 

If  fin  iib-c'.'j'e  i!i-(  i-ion  on  • 

it  world  ap|K-ar  i  .>n-.-i:;ir.t  t:>  u-a-...:i    t!iat   an  un'.iipidateil 
claim,  sounding  in  dam  .  .  ,d  lie  e\tin-ui,hed  bv  tho 

acceptance  of  an    ij*trument  of  a   higher   nature,    which 
fixed  the  amount.     Jiut  „  this  to  be  left  iu  doubt, 

has  the  defendant  succeeded  in  show  in-  that  the  complain- 
iitit'-,  reiatdy.  (supposing  him  entitled.;  would  be  dttir  and 

(~u  JHe  hronpht  a  suit  at  law  on  such  a  note  executed  l>y  (.'lurkc 
If.  Co.  »£..  .  .ltd  juil^iu- 


OF  MARYLAND.  479 

c.erftif:i  in  a  court  of  lau%  or  th;»t  it  would  there   be   fuliy        1809. 
investigated,  and  receive  a  complete   ami    effectual  decisi- 
on? 

If  equity  jurisdiction  mnv  he  exerciso.d  to  put  a  bound 
to  vexaiious  and  oppressive  litigation,  and  pi-event  a  multi- 
plicity of  suit*,  it  is  not  necessary  to  send  a  party  to  a 
court  of  law,  where  the  remedy,  if  to  bft  attained,  would 
be  the  same;  and  in  this  case  it  may  be  inferred  from  the 
evidence  of  ,/.  Riddle,  that  if  instead  of  bonds,  notes  un- 
sealed had  been  given,  the  same  recovery  would  have 
been  had  as  in  Riddle's  case.  And  the  same  principle,  in 
addition  to  the  disci etionary  powers  of  this  court,  will  ac- 
count for  the  chancellor's  not  apply""?  to  a  court  of  law, 
as  was  suggested  by  the  defendants'  counsel. 

The  complainant  has  already  tried  his  remedy  at  law, 
which  has  failed,  as  much  at  least  through  the  fault  of  the 
defendants  as  his  own;  and  it  is  not  clear  but  that  a  suit 
in  this  court  might  have  been  originally  sustained  on  the 
ground  of  Williams  not  being  bound  in  law  by  the  bonds, 
though  in  that  case  the  opinion  of  the  court  or  the  judges, 
as  to  the  law,  might  have  been  resorted  to. 

In  the  case  of  a  joint  bond  it  is  a  constant  practice,  in 
case  of  the  insolvency  of  the  surviving  obligor,  to  commence 
a  suit  in  chancery  against  the  representatives  of  the  other 
party;  and  although  this  arises  in  part  from  the  acknow- 
ledged jurisdiction,  as  to  administrators,  &c.  yet  it  is 
grounded  also  on  the  situation  of  the  parties  rendering  the 
remedy  of  the  law  ineffectual. 

With  regard  to  the  part  of  the  bill  praying  for  a  disco- 
very, it  may  be  further  observed,  that  as  the  binding  of 
Williams,  by  the  bonds  of  Clarke,  is  alleged  to  have  de- 
pended at  law  on  the  assent  of  Williams,  an  acknowledg- 
ment of  such  assent  might  have  b*i-n  expected  by  the  com- 
plainant on  filing  his  bill,  which  might  have  been  a  reason 
for  filing  it. 

The  chancellor  has  stated  1m  reasons  at  greater  length 
than  may  be  usual  or  necessary  in  such  cases,  on  account 
of  the  doubts  which  he  entertained  at  the  trial.  These 
doubts  have  been  removed  by  the  further  consideration 
which  he  has  given  to  the  subject;  and  his  opinion  is  ground- 
ed on  the  principles  which  he  has  stated,  and  on  his  deter- 
mination, that  where  the  merits  appear  to  be  with  the  com- 
pUiuaut,  he  will  out  dismiss  a  bill  on  an  allegation  of  the 


480  CA>KS  IN  TUB  COURT  OF  APPEALS 


of  j-MUdirtion,  or  any  other  similar  objection,  > 
it  is  Hearly  and  poMti\»-ly  iv-tabli-linl.  Drrrenf.  that  the  tlc- 
l''!!(!;i;1^  l"«y  <"  the  complainant    the  sum  of 
current  money,  with  interest  thereon,  \c.   ami  tin-  <  Mtl  «.t 
this  suit.     From  this  decree  the  defendant,   IVilliums^  ap- 
pealed to  this  court. 


The  C2UM-  \v;t>  ni^'i-'l  before  C  MASK,  Clu  J.  BUC-IIA- 
-VAX,  (JAN-IT,  and  EAHLI.,  J. 

<S7uz<7^*and  MagruJcr^  for  (he  Appellant,  contended,  I. 
That  there  vns  no  legal  proof  of  a  partnership  between  the 
appellant  and  Clarke.  2.  That  if  the  appellee  had  any 
right  to  recover  against  the  appellant,  his  remedy,  from  the 
proof  in  the  case,  was  at  la\v,  and  not  in  equity;  and  3. 
That  the  appellee  had  no  right,  either  at  law  or  iu  equity, 
to  recover  against  the  appellant. 

On  the  yir.ii/  point  they  contended,  that  the  answer  of 
one  defendant  was  not  evidence  against  another  defendant, 
and  cited  1  Ilarr.  Chun.  TV.  Sfi,  -41. 

<>:i  the  second  point,  they  cited  Dorsey's  Ex'x.  vs.  Dor- 
sr.y'a  EJC'TS.  (a}.  They  also  contended,  that  there  was  not 

(~f'J  The  case  of  Dorset/'*  /  Vs.  in  the  court 

of  chancery  at  Kebnary  t  -r:n  170-1,  appears  to  be  this:  H.  T.  vrilh 
J.  D.  his  ...  cntcd  their  joint  bond  to  K.  U.  in  1758,  : 

:>!>k-  in  1769,  arrl  in  17.J3  a  join'    .suit  w:is  brought  ivp.iiiiht  tin/in  at 
law  upon  t!io  hon-l.     During  the  pendency  of  the  suit,  J.  L).  <i 
liis  ted,  I         i'ld.^inent  by  coitfcssiou  was  rrii. 

cd  a^yiinst  U.  T.  in  1790.  'I'hc  suit  continued  against  J.  1).  and  in 
1791  it  was  entered  aliotrd.  U.  T.  obtained  a  discharge  under  the 
insolvent  law  in  1788,  and  bis  tnistc-e  snM  [r.  '"K"'11^  to 

the  insolvent,  on  a  credit,  more  tlian  sullic'u-nt  to  p.iy  all  !, 
It.  T.  w.i  ie  dfbt  sued  for,  until  and  :.ftcr  T86, 

but  no   TI  TC  taken  for  its  recovery  until  thn    above 

•was  l:ro:iglit.     The  execiHors  of  J.  D.  tad  fully  administered  aiuj 
.v  all   tbc   I  d;    but   thfv    liad  notice 

from  K.  I),  -oi'l  ?i  (k-Mi.iiid  of  jxiynu-nt.  u;i^  nm-lc  of  them  n-ithiit 
one  year  nf\.;r  t!.,  dt-aili  of  .1.  1).  A  bill  \v:,s  fil.'d  in  rlianccry  in 
1792,  by  K.  1).  (:.nd  on  hisdraMi  revived  in  the  name  of  his  cxe- 
rntrix)  a^.iinst  th  •  CM-i-iitore  of  J.  I),  to  b<_-  |>:ti.l  the  debt  due  on 
the-  Jio-i'l.  T.  .  ,  .lonjj  other  tlu'iujs,  in  their  answers, 

relied  upon  the  act  ot  limitations. 

IF  \f-inv,  f'lianrc-Hor.     On   cverv  application   to  this  ronri. 
Pfroundfd  on  positi\t-  law,  wln/n  it  a]  '  no  fornn-r 

is  in   all  points   applicable  t«  the-    pi  ,  the-    principles*  OO 

which  the  court  wa«*  originally  in-tiinti-il,  an-  to  be  ronsiiK-ri-d.  Its 
jurisdiction,  from  the  bopinnin.  '  •HK 

"imvi  rtf  law,  in   olihgiii^- 

them  to   ' 

of  .-v.-ry  kind,  either  express  or  implied,  and  in  r.  '. 
'.-nt.     Hn'  it  never  yet  has  l>ren   the  i 
ness  cf  tlii»  court  to  compel  men  to  do  that,  which  neither  they, 


OF  MARYLAND. 

sufficient  proof  of  the  execution  of  the  bonds  stated  in  the        1809. 
bill?   that  the    originals    ought  to    have  been   produced. 
Pcakc's  Evidence,  06.    Wymurk's  case,  5  Coke,  74.  2  Com. 
Dig.  tit.  Pleader,  (P.  1).     Harper  vs.  Hampton,   I  Harr. 
4*  Johns.  710;  and  Dasobry  vs.  Terrier,  (ante  219J. 

Oo  the  third  point  they  contended,  that  the  execution  of 
the  bonds  extinguished  the  simple  contract  debt,  both  as  to 
Williams  and  Clarke.  They  cited  Buc.  Ab.  tit.  JRelease, 
(G.)  Bull.  N.  P.  155,  Chiefs  Plead.  155.  Clement  vs. 
Jlriish,  3  Johns.  Cos.  180.  Picrson  V8.  hooker,  3  Johns. 
Rep.  70.  4  Fm.  .46.  387.  1  /bnW.  \\T,(note.)  2  Co?n. 
/)*£.  tit.  Chancery,  476,  330,  331;  and  Tom  vs.  Goodrickj 
2  Johns.  Cas.  213. 

nor  the  persons  whom  they  represent,  have  engaged  to  perform, 
which  the  positive  laws  of  the  land  do  not  enjoin,  aud  which  equity 
and  good  conscience  do  not  demand.  In  some  cases,  indeed,  which. 
dad  not  appear  to  come  under  known  established  principles,  or  to 
be  embraced  by  former  decisions,  chancellors  have  exercised  their 
ingenuity  in  raising  agreements  by  construction;  provided  never- 
theless, that  the  performance  of  the  thing,  thus  supposed  to  be 
contracted  for,  might  fairly  and  reasonably  be  demanded.  Hence 
it  is  that  the  condition  of  a  bond  to  pay  money  has  been  construed 
an  agreement,  which  equity  ought  to  enforce,  after  the  obligor  lias 
been  disciiarged  from  the  penalty  at  law.  How  far  the  first  deci- 
sion in  such  case  was  right,  is  perhaps  questionable;  for  this  plain 
reason,  that  the  obligor  was  not,  and  could  not  be  apprized  of  the 
power,  which  equity  would  afterwards  assume,  of  compelling  him 
to  do  that,  which  he  never  in  any  manner  contracted  to  perform; 
the  operation  of  a  joint  bond  at  law  being  this,  that  during  the  lite 
of  both  obligois  it  is  binding  on  both,  and,  after  the  death  of  one, 
the  obligee  can  have  recourse  to  the  other  only.  However,  the 
determination  in  the  case  of  Bishop  and  Church,  2  Fes.  371,  cited 
by  the  counsel  on  each  side,  must  now  be  recognized  as  a  law  or 
rule  for  this  court;  and  whether  that  case  applies  sufficiently  to  the 
present  is  to  be  examined. 

The  two  cases  appear  to  agree  in  every  point,  except  one;  but 
that  one  point,  in  which  they  differ,  is  important.  In  the  former 
case,  executors  of  a  joint  obligor  were  called  on  to  pay  money 
lent  to  the  testator  and  the  other  obligor,  who  were  partners  in 
trade,  and  the  constructive  agreement  of  the  testator,  was  on  a 
substantial  consideration.  But,  in  the  present  case,  the  executors 
are  called  on  to  pay  money  which  never  was,  or  intended  to  be, 
participated  by  their  testator.  The  constructive  agreement 
therefore,  on  which  alone  this  court  could  decree  against 
them,  was  voluntary,  and  such  as,  without  special  circumstances, 
ought  not  to  be  enforced.  What  then  are  the  special  circumstances 
of  this  case?  To  say  nothing  of  the  lapse  of  time,  and  the  neglect 
of  the  complainant.  He  has  it  still  in  his  power  to  obtain  the  debt 
from  the  trustee  of  the  surviving  obligor.  In  short,  it  appears  to 
the  chancellor,  that  a  decision  in  favour  of  the  complainant  would 
go  far  beyond  any  former  determination,  and  that  former  determi- 
nations, with  respect  to  joint  obligors,  have  gone  quite  far  enough. 
On  the  point  relative  to  the  act  of  limitations,  it  is  not  necessary  to 
decide—  Screed,  that  the  bill  be 


VOL.    II,  6-1 


CASES  IN  THK  COURT  OF  APPEALS 


A"1//,  anil  Johnson.  (Attorney  General,)  cited 
Part.  40,  S3r,  458.  Ilizgins's  case,  6  infer.  4(>.  Abbott 
ts.  Smith,  2  II'.  }}/k.  ftcp.  050.  Maihloi  vx.  Jar  k  sort,  :^ 
Jtk.  40G.  Darn-cut  vs.  Itulton,  2  Jtk.  51«:  and  lith. 
Coin.  45G. 

CHASE,  Ch  J.  ilelivered  the  opinion  of  the  court.  The 
court  have  considered  the  bill,  answer  and  proof,  in  this 
tiise,  the  arguments  of  counsel,  and  the  decree  of  the 
chancellor;  and  admitting  the  proof  to  be  sufficient  t 
iablish  a  partnership  between  Jfillimns  and  Clarke  in  th« 
extent  charged  in  the  bill,  in  opposition  to  the  answer  of 
the  defendant,  and  admitting  al«o  that  the  bonds  mention 
cd  in  the  bill,  as  executed  by  Clarke,  under  the  signature 
of  Clarke  fy  Co.  have  been  fully  proved,  it  appears  to  the 
court  that  the  complainant  i?  not  entitled  to  any  relief  in 
equity,  and  that  the  decree  of  the  court  of  chancery  ought 
to  be  reversed. 

It  is  a  principle   recognised  by  the  courts   of  law  and 
equity,  that  a  bond  given  by  one  partner  for  a  simpK 
tract  debt  due  from  the  partners  to  the  creditor,   and   ac 
cepted  by  htm,  is  by  operation  of  law  a  release  of  the  other 
partner,  and  an  extinction  of  the  simple  contract  dc!>r. 

It  is  also  established  by  the  courts  of  law  and  equity. 
lliat  ignorance  of  the  law,  as  to  the  legal  consequences  re 
suiting  from  such  a  bond,  cannot  excuse  or  form  a  ground 
for  relief  in  equity,  on  the  suggestion  and  proof  that  the 
party  was  mistaken  as  to  the  legal  effects  of  such  a  bond, 
imagining  at  the  time  that  it  could  not  operate  as  a  rcU-u-r 
to  the  other  debtor,  and  that  his  responsibility  still  ex- 
isted. 

The  court  are  also  of  opinion,  that  the  bond;}  set  forth 
in  the  bill,  although  not  binding  on  Williams,  are  obligato- 
ry on  Clarke. 

On  these  grounds  the  court  decide,  that  the  decree  of  the 
court  of  chancery  ought  to  be  reversed. 

BUCHANAN*,  J.  I  consider  the  partnership,  alleged  in 
this  case  to  have  existed  between  the  defendant*  below,  as 
sufficiently  established  to  the  extent  charged  in  the  bill, 
and  that  the  delivery  of  the  goods  and  merchandise. 
to  have  been  sold  to  Clarke,  as  acting  partner,  i*  fullr 
proved. 


OP  MARYLAND.  4-83 

But  if  the  bonds  charged  in  the,bill  to  have  been  passed  1809. 
by  (,'larke,  in  behalf  of  Williams  aod  himself,  were  exe- 
cuted by  him  for  the  amount  of  those  goods,  the  simple 
contract  debts  were  not  thereby  severed,  and  continued 
open  as  to  Williams,  and  destroyed  as  to  Clarke,  (on 
whom  such  bonds  would  be  obligatory;)  but  being  respec- 
tively joint,  they  became  in  law  extinguished  as  to  both. 
And  though  equity  will  interpose  its  aid  where  a  remedy  is 
wanting  at  law,  the  demand  continuing,  yet  it  cannot  re- 
vive a  debt  which  in  law  is  extinguished. 

If,  however,  such  a  bond  could  be  construed  to  extin- 
guish a  simple  contract  debt  as  to  the  party  signing  it  only, 
leaving  it  open  as  to  the  other  partner  tor  the  interposition 
of  a  court  of  chancery,  yet  in  this  case  the  complainant 
has  failed  in  proof  to  lay  a  foundation  for  a  decree  against 
71  illiamsi  for,  as  against  him,  the  bonds  in  question  which 
are  set  up  in  the  bill  as  the  very  ground  of  the  relief  pray- 
ed, are  not  proven  by  any  legal  evidence  exhibited  in  the 
record;  and  it  cannot  be  seriously  contended,  that  in  the 
absence  of  such  proof,  the  chancellor  could  hold  jurisdic- 
tion over  the  case;  for  if  no  sucli  bonds  were  executed  by 
Clarke,  the  simple  contract  debt  remains  unimpaired, 
and  the  proper  remedy  is  in  a  court  of  law. 

Upon  the  whole,  I  am  of  opinion  that  the  chancellor5* 
decree,  however  consonant  to  strict  justice,  ought  to  be 
reversed. 

DECREE  REVERSED. 


HALL  vs.  GRIFFITH.  PEOEMBKR.' 

APPEAL  from  a  decree  of  the  Orphans  "Court  of  Harford     An  ndministra. 

<f          tor  mtut  com  ply- 

COUnty.  Griffith,  (the  appellee,)  together  with  his  wHfeS^rphJJJ*^ 
Cordelia,  since  deceased,  representatives  of  John  ft.  Hall,  ?il"p"rso,,Ves?i.te 
deceased,  by  their  libel,  exhibited  on  the  18th  of 


<J>  bts,  and  caiuiot 

retain  the  property  a;  the  appraised  value,  on  pajing  the  debts  out  of  bis  own  futids  to  lUe  amount 
of  the  appraisement. 

After  piijiuciii  of  the  debt*  of  the  deceased,  and  all  leRal  ousts  and  charges  attending  the  adminis. 
:rati(  11,  thf  administrate-.-  must  deliver  over  ibe  residue  of  the  (icnoyal  titate  sja'C»fie»J'y  to  tbe  re- 
presentatives of  thf  ilrc-east-d. 

When-  an  adimnistmun-  retained  a  part  of  tke  personal  estate  of  tjte  defeated,  at  tbe  appraised,  value, 
and  «>lr!  a  part  tor  the  heiifti  t  of  the  tsiute,  am!  a  part  as  his  own  propert)—  Hud,  that  he  must  ao 
•,'onnt  for  th,e.  increase  of  tin-  slaves,  and  lor  the  u«.-.  labour  and  hir«s  of  all  slaves  retained  or  hired  by 
him  ;  ami  \\here  one  of  tbe  slavi  s  had  nip  away,  he  inuti  accm.iit  for  tuvh  slave  at  the  appraited  va- 
Jue,  unless  he  used  all  reasonable  endeavours  to  regain  y»»»t«iuti  of  meh  slave.  He  i»  to  be  allowed 
Jor  money  expended  in  i-.oiiung  and  maintaining  surh  of  the  ^lato  ai  \\ere  unable  to  work,  and  in 
'bringing.  "Pi  clothing,  fee.  Up  intreasi  of  s'avri,  so  lonfj  as  ihey  coniuiut-d  y  charge.  Also  ibr  all 
d<-lm  paid;  for  hi»  comniiftion,  anil  nil  k^al  costs  He  U  to  he  chnrped  with  the  amouilt  Ot  lilt  iurea* 
ou  tUc  >»i«.»  ul'  i.Ut  piupt-r 


4-34  CASKS  IN  THE  COUUT  OF  APVEALS 

1809  bor  1,C05,  alleged  to  the  orphans  court  that  Jlquila  Hull, 
(now  appellant.)  the  administrator  D.  D.  N.  of  John  B. 
//(///,  had  made  sales  of  numlrv  slaves  and  other  articles, 
belonging  t»  the  estate  nt'  the.  decea-ed,  and  had  never  ac- 
counted for  the  amount  of  the  sales,  hul  only  for  the  amount 
of  the  •ppniMinent.  That  the  saks  greailv  exceeded  the 
amount  of  the  appraisement.  That  he  retaiiu'd  in  his  hands 
sundry  articles  belonging  to  the  estate,  and  has  had  the 
use,  profit  and  labour,  of  sundry  of  the  slaves,  for  whu  h 
he  never  accounted.  That  sundry  of  the  slaves  have  had 
increase,  which  remain  in  his  possession  unacountcd  for. 
Prayer  for  an  account,  &c.  Hull,  hv  his  answer,  slating 
that  lie  was  appointed  administrator  dc  bonis  non  of  John 
B.  Hall,  some  time  in  the  year  1790,  admitted,  that  before 
he  obtained  an  order  from  the  orphans  court  for  that  pur- 
pose, he  had  sold  sundry  articles  liable  to  waste,  £c.  on  a, 
credit,  amounting,  according  to  the  appraisement,  ' 
8  1,  and  according  to  the  sales  to  £'.><>  1!)  G,  a  part  of 
which  he  had  not  received,  owing  to  the  insolvency  of  the 
purchasers.  He  admitted  that  he  received  sundry  slaw-, 
aiid  other  articles,  as  stated  in  the  inventory,  amounting  to 
.17 -.1  2  4.  That  he  obtained  an  order  from  the  orphans 
court  to  sell  as  much  of  the  property  as  would  pay  the 
debts  of  the  deceased,  and  it  was  understood,  between  the 
court  and  him,  that  it  was  discretionary  to  sell  or  not,  ow- 
ing to  the  difficulty  of  selling  property  at  that  time  for 
cash,  and  the  order  did  not  authorise,  him  to  sell  upon  crc^ 
dit.  That  he  sold  some  of  the  slaves,  and  if  he  had  sold 
all  the  property  in  the  inventory  for  rash,  it  would  not 
have  discharged  the  debts  of  the  deceased;  and  under  that 
impression,  and  to  save  the  real  estate  from  lining  sold,  lie 
paid  the  debts  out  of  his  own  money,  and  retained  the  per- 
sonal property  for  the  same.  That  upon  settlement  of  his 
accounts  with  the  orphans  court,  they  would  not  allow  him 
to  charge  the  estate  with  an\  interest,  after  IS  months, 
from  the  date  of  his  letters  of  administration,  although  he 
paid  considerable  sinus  of  interest  after  that  time.  That 
one  of  the  slaves  had  run  away.  That  he  had  paid,  and  been 
allowed  by  the  orphans  court,  debts  and  commissions  to  a 
considerable  amount  more  than  the  appraisement,  vi/,. 
£8'2()  15  11.  He  admitted  the  increase  of  some  of  the 
<-!aveu,  and  that  such  increase  was  in  his  possession.  That 
he  was  at  considerable  expense  iu  supporting  old,  infirm 


OF  MARYLAND.  485 

slaves,  nnd  in  bringing  up,  maintaining  and  clothing,  the  1809. 
increases  and  that  he  had  since  sold  sundry  of  the  slaves 
as  his  own  property.  The  orphans  court  decreed,  that 
Hall  ought  to  account  for  the  sales  of  such  part  of  the  es- 
tate of  the  deceased  as  he  had  already  sold,  and  that  the 
residue  of  the  estate,  as  contained  in  the  inventory  return- 
ed, he  could  not  retain  and  keep  at  the  appraisement,  but 
that  he  ought  to  pursue  the  order  of  the  court  of  the  9th  of 
A'J»;ust  1791,  which  directed  him  to  sell  so  much  of  the 
personal  estate  of  the  deceased,  as  might  be  sufficient  to 
pay  the  debts.  From  this  decree  Hall  appealed  to  this 
court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  BUCHANAN, 
NICHOLSON',  GAKTT,  and  EARLE,  J.  by 

Martin,  for  the  Appellant;  and  by 

Johnson,  (Attorney  General,)  for  the  Appellee. 

CHASE,  Ch.  J.  delivered  the  opinion  of  the  court.  The 
court  are  of  opinion,  that  the  appellant,  as  administrator 
dc  bonis  non  of  John  B.  Hall,  ought  to  have  sold  at  public 
sale,  pursuant  to  the  order  of  the  orphans  court  made  on 
the  9th  of  August  1791,  as  much  of  the  personal  estate  of 
the  deceased  as  would  have  been  sufficient  to  discharge  and 
satisfy  all  the  debts  of  the  deceased,  and  all  legal  costs 
arid  cliprges  attending  the  administration,  and  ought  to 
have  delivered  over  the  residue  of  the  personal  estate, 
specifically  to  the  representative  of  the  deceased,  the  libel- 
lant  in  this  suit;  that  the  appellant  had  no  right  to  retain 
the  personal  estate  at  the  appraisement,  on  his  paying  the 
debts  of  the  deceased  to  the  amount  of  the  appraisement. 
That  the  appellant  account  for  the  increase  of  the  negroes, 
and  for  the  use,  labour  and  hire,  of  all  negroes  retained  or 
hired  out  by  him,  and  that  he  account  tor  negro  Corbin^ 
(who  ran  away,)  at  the  appraised  value,  unless  the  orphans 
court  shall  be  satisfied  that  the  appellant  used  all  reasona- 
ble endeavours  to  regain  possession  of  that  negro.  That 
he  be  allowed  all  sums  of  money  necessarily  expended  by 
him  in  clothing  and  maintaining  such  of  the  negroes,  named 
in  the  inventory,  as  were  not  able  to  work  and  maintain 
themselves,  and  in  bringing  up,  maintaining  and  clothing 
the  increase  of  any  of  the  negroes,  so  long  as  they  con- 
tinued a  charge.  That  he  be  allowed  all  sums  of  money 


t  ASE5=   IN  THE  LOtKT  OK  AI 

p,v.«l  by  hirrt  to  t^ic  en  I,  his  commj»> 

MOM,  and  all  I'  That  lie  he  charged 

with  flu-  amount  of  the  inventory,  exclusive  of  tin 
\vith  (lie  sum  ^ained  on  the  sales  thereof:  \\itii  die  amount 
of  tin  ;  \vit!i  di!>  •  -I  liy  him;  and   tli.it 

an  account  be  iak.cn   and    ma'.ie  out   in  conformity    to  the 
principle*  and  directions  herein  Mated.      Tiiat  tin1   nppel- 
l.in t  proceed  to  it'll  at  public  sale,  for  rash,  a.s  much  of  the 
personal  estate  as  may  be  nerr»-,u  \  to  defray   ai.il 
auy  balance  which  may  be  due  to  the  creditors  ol  the   de- 
ceased, ami  the  appellant,  on  a  settlement  to  be  made,  j»ur- 
suaitt  to  the  principles  aforesaid. —  Dunul,  that  the  «' 
«.J  the  orphans  court  be  reversed,  and  that  that  court  pi' 
without  delay,  to  compel   the  appellant,    as  administrator 
tit  bnnis  non  of  John  1L  //«///,  to  set'lo  the  estate  i;i  con- 
formity to  the  principles  set  forth  he-rein,  and  that   the  ap- 
pellant deliver  over  to  the  appellee,  the  negroes  uhu 
remain  in  liis  hand?  after  siMilin^  the  otate  in  (lie  manner 
directed:  and  that  the  appellant  pay  tu  the  appellee 
the  coats  by  hint  incurred  iu  this  court. 

DfcfKKK    Kl  ,    .SiC. 


DECKMR>R.  UOFK.NHV  vs.    BAKI  ;i. 

•when- a  bin  » «i      APPEAL  from  the   Court   of  Chancerv,    (lt*missinir  the 
tr,«d  iu  i-(,;iM <-i>. 
10  **i  "i"1'    'i'1  bill  of  the  complainant,  (now   appellant.)    which  was  filed 

attnui  n  ufiTtv  i>*'- 

;         .,;',,",;',  '£  on  the  Jih  of  April  1802.     The   object   and  nature  of  the 
*r»"nUi,thon''7hr^  bill  is  stated  iu  the  decree. 

J.r,.|M.,t       ol       Irjllll 

,!,  "nLh'l      KII.TY,  Chancellor.     (July  ten..  The    object  of 

Ji^'Jk««w«":-  the  bill,   as  stated  therein,   and   in    the   argument*  of  the 

'  *****  i      •  i  r  i 

jei.c«ot  tnnui.iif  counsel,  is  to  set  aside  and  annul  the  decree  heretoiore  ob« 

dnmM*Mlt 

tained  bv  the  defendant  asaniHl  the  complainant,  in  thia 

Oll»B.,  , 

.oiirt    in  October  1801,    on  the  ground   of  fraud  practised 

iiv  the  defemlant  in  the  obtaining  that  decn 

It  become.-*  i.ere--ary  therefore   to  examine  how  far 

;! legation  is  supported  by  the  e*. idence  in  the  present  .-nit. 
This  con>Hts  of  the  plot  returned,  by  which  the.  complain- 
.i.t  c'liiu'iuU,  that  it  appears  the  locations  of  the  lands  in 

.•.iiim\»-r*y  are  different  from  what  they  were  represented 
t>>  be  in  the  former  ca-f.  15ut  tliis  circum-  IIJK.-- 

iii^  ',t  tub.-,  clearly  established,  doc?  not  amount  to  a  |>n".t 
of  fraud  as  to  the  former  Uecrce.  One  part  of  the  testi- 


OF  MAHYLAND.  487 

ttion}',  admitted  in  the  former  case,  was  the  deposition  of  1809 
John  Foster,  which  the  complainant  alleges  \vas  repugnant 
to  the  truth;  and  another  \vus  the  certificate  of  Bell,  as  an 
assistant  surveyor  to  Qtsti  winch  the  complainant  states 
was  agreed  by  his  counsel  to  be  admitted  as  evidence  up* 
on  the  false  suggestion  of  the  defendant.  Of  this  fact 
there  appears  to  be  no  proof;  and  although  fraud  may  be  in- 
ferred from  a  variety  of  circumstances  combined  together* 
it  is  not  to  be  presumed  merely  because  the  fact  may  on, 
the  present  proof  be  different  from  what  the  evidence)  ad» 
mitted  through  mistake,  showed  it  to  be. 

It  is  not  necessary  or  proper  to  go  into  the  former  de- 
cree on  the  evidence  then  produced,  and  it  must  stand,  un- 
less it  can  be  set  aside  according  to  the  known  and  estab- 

O 

lished  principles  of  this  court.  Decreed,  that  the  hill  of 
ihe  complainant  be  dismissed,  but  without  costs.  From 
this  decree  the  complainant  appealed  to  this  court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  NICHOL- 
SON, GANTT,  and  EARI.E,  J.  by 

Johnson,  (Attorney-General,)  for  the  Appellant;  and 
by 

^  for*  the  Appellee. 


THE  COURT  decreed,  that  so  much  of  the  decree  of  the 
court  of  chancery  as  dismissed  the  bill  of  complaint  of  the 
complainant  be  tiffirmeih  and  that  that  part  of  the  decree 
which  directs  that  the  dismissal  of  the  bill  should  be  with- 
out costs,  be  reversed;  and  decreed  that  the  appellant  pay 
to  the  appellee  all  the  cost*  incurred  by  the  appellee  in  the 
court  of  chancery,  and  in  this  court. 

DKCRKF.  REVERSED,  &C. 


SlVGKRY  VS.   Tav. 

APPEAL  from  a  decree  of  the  Court  of  Chancery.    The  0,w,^re 
hill  filed  ia  the  name  of  the  Attorney -General,  at  the  re-  SJi^c 

.Of  survey  WB« 

forgedf.Mtch  evidence  conlil  hare  been  teemed  ai1mi«ihle>  only  on  the  ground .  that  if  the  certificate 
wni  proved  to  he  forjfed,  rhe  <rnnt  obtained  on  it  wni  fraudulent,  anil  could  have  no  operation  in 
<uw  to  |im»  the  lanil  to  the  fjruntee 

Fraud  rnav  h«  inquired  into  as  Well  at  law  n.«  in  equity:  and  where  frauds  are  clearly  established, 
tJu-  court*  of  tnw  »nd  of  equity  Imve  concurrent  jorirli'ri  i»n 

Where  the  fact  of  the  furwry  nf  t\  certificate  of  survey,  nnd^r  the  fcrn  nf  on  wTiii'h  the  rlH'tndnnt 
claimed,  came  (x-forc  the  court  and  jiiry  cullalcraily,  anil  ««i  net  directly  InAWHtioh,  the  i»ene  he- 
twven  the  pnrtiei  liein^,  who  hnd  th-  ri-^ht  uf  po«oihm  to  the  Intitl  in  contrff>vr»y,  Ihe  vn-dict  in 
ikvour  vi' tu«  Jcfcadaot,  eanaot  &z  rcccirgU  as  evidence  to  prove  thai  thu  tcrtilicaie  was  not  forged. 


483  CA-K>  IN  THE  COURT  OF  APPEALS 

1809        lation  of  A'c ••!;!??  fJ>rtin:^  on  the  19th  of  November 

I,  that  in  the  year  1770,  the  surveyor  uf  liultinwrf 
county,  beiiiii  directed  by  the  commissioners  of  the  Lord 
Proprietary  to  survey  and  lay  out,  for  any  persons  that 
might  apply  to  him,  any  part  of  the  AYime  land  iti  that 
county,  to  enable  them  to  contract  with  the  commi-^iam  i  s 
for  the  purchase  of  such  land,  James  (  -  surveyor 

of  the  county,  by  virtue  of  the  power  and  authority  from 
the  commissioner?,  did,  on  the  30th  of  September  1770, 
survey  and  lay  out  for  Siigery,  (the  appellant,)  a  tract  of 
land  in  the  Reserve  called  Siuzrrij'y  Tronfiai.'  Streams, 
containing  178  acres,  and  included  within  the  courses  and 
distances  described  in  a  certificate  of  the  courses,  taken 
fruin  the  original  entry  in  the  surveyor's  books,  &.c.  "be- 
ginning at  two  bounded  white  oaks  standing  between  two 
barren  hills,  at  the  end  of  the  last  line  of  a  tract  called 
jlferninuin'is  Mountain,  (included,)  and  about  \V  9  perches 
from  (icor £(•'.•)•  Run,  and  running  \\  •  -urscs 

and  distances,  without  calls,)  "and  thence  \sith  a  sti 
line  to  the   beginning,  containing  178  acres,    arid    called 
A'ingcry's  Trouting  Streams.  September  30th  1770."  That 
the  certificate  made  out  by   Cur  a  \rvor  of  the 

county,  for  Singeryjs  Trouting  Streams,  to  be  returned  to 
the  land  office,  corresponded  in  all  respects  with  the  re- 
cord of  the  courses  kept  by  the  surveyor  himself  as  above 
described,  but  that  Singery  combining,  &.c.  how  to  impose 
upon  and  defraud  the  Proprietary  out  of  his  land,  and  the 
purchase  money  which  he  would  otherwise  be  entitled  to, 
returned  to  (lie  land  office  a  certificate  of  the  courses  of 
Sin^frifs  Tuniting  Streum*  different  from  that  whirv 
made  out  by  the  surveyor,  as  will  more  fully  appear  by 
the  certificate  and  plot  of  the  land  recorded  in  the  land 
office.  That  in  the  true  and  genuine  certificate  of  Singery's 


Thr  «>nrt  not  Mvini*  <lir*c»H  the  pirv  «h»t  if  th->y  lonnil  thr  crrtifira'r  forpvl.  thi»  nathinc  pa««- 

rrl  !>v  il.r  i-:-i'  •  I   ihe  fact  of 

in  !  nf  l'r.ii|.l.  rim. 


i  ,  .  ,        . 

I   to  ainwrr 

,.|f    of 

fr  i  a 
u,or  «ill  ;iukr  mcK  ilirrrv  »«  til-  nrn:  I»C    n>--  rr,i  i,-r   n»- 

'  -TTTV  of  »  <••  •  ->m..lMh«d, 

j,>r«jiu  ird  in  lUc  Uaci  ol  ill*-  ti*..  oi  .  ..  j  tuc  cuiOj>liiM"t» 


OF1  MARYLAND,  489 

g  Streams,  there  is  no  call  for  "the  beginning  trees        1800 
of  Petticoat's  Loose,'"  but  that  the  certificate  returned  to       ^t^""— ' 
the  land  office  by  Sin^eri/,  has  this  expression,    which  the 

Attorney-General 

relator  expressly  states  was  forged  and  inserted  by  Sirtge* 
ry  for  the  purpose  of  extending  the  twelfth  line  of  the  tract- 
•  and  thereby  taking  in  mure  land  than  he  was  entitled  to. 
That  by  the  certificate,  as  made  out  by  Calder  before  men- 
tioned, Sing-ery's  Trout  ing  Streams  is  made  to  contain 
ITS  acres,  but  that  by  the  certificate  returned  to  the  land 
•office  by  Singery,  that  tract,  by  virtue  of  the  call  above 
mentioned,  contains  560  acres,  as  Singery  contends,  though 
the  certificate  expresses  only  178  acres,  as  will  appear  by  a 
plot  of  the  land  exhibited,  and  which  was  made  out  and 
returned  by  the  surveyor  of  Baltimore  county  to  the  gene- 
ral court,  in  an  action  of  ejectment  therein  depending  for 
the  land  between  the  relator s  lessee  and  Singery.  That 
Singery,  on  the  20th  of  April  1775,  obtained  a  patent  on 
the  said  forged  certificate,  and  thereby  got  382  acres  of 
land  more  than  he  was  entitled  to,  or  compounded  for  with 
the  Proprietary,  or  his  agents.  That  by  virtue  of  two  spe- 
cial warrants  obtained  from  the  land  office  in  the  year  1793, 
the  relator  had  surveyed  for  him,  by  the  surveyor  of  Balti- 
more county ,  309  acres  of  land,  called  Boreing's  Habita- 
tion Rock,  and  returned  a  certificate  thereof,  and  that  af- 
terwards, on  the  24th  of  April  1795,  a  patent  issued  to  him 
for  the  same.  That  the  land  taken  up,  and  paid  for  by 
him,  called  Boreing^s  Habitation  Rock>  is  claimed  by  Sin- 
gery under  the  false  and  forged  certificate  and  patent  there- 
on, as  will  fully  appear  by  the  plot  before  referred  to;  and 
that  Singery  has  possession  of  the  land,  and  holds  it  as 
being  within  the  lines  of  Singery's  Trouling  Streams.  But 
the  relator  expressly  charges,  that  he  has  instituted  an 
ejectment  in  the  general  court  against  Singery  to  recover 
the  land,  and  obtained  a  verdict  and  judgment  in  his  fa- 
vour, from  which  decision  Singery  has  appealed  to  the  court 
of  appeals^;  and  he  is  apprehensive  that  the  said  imposi- 
tions and  forgery  will  be  productive  of  endless  controver- 
sies and  disputes  between  him  and  Singery,  unless  it  can 
be  corrected  by  this  court.  That  by  the  plot  returned  to 
the  land  office,  with  the  certificate  on  which  the  patent  is- 
sued, it  is  obvious  that  Singery's  Trouting  Streams,  (which 
included  two  old  surveys,  namely  Petticoat's  Loose  and 
"(a}  Vide  4  Hctrr.  V  Mtfen.  393. 
VOL  n  62 


400  CASE*  IN  TIIK  CWKT  OF   APPEALS 

Mtrryman's  Mountain  and  a  very  small  piece  ol'v 

tould  not  contain  more  than  ITS  acres,    ;t>   mentioned  in 

the  certificate,  because  bv  the  plot  it  appears    thut    J'ctti 
AMorary  Gr«*»l  ' 

coat  s  LOOM,  anil  Mcrrynntn  .v  Mountain,  wen-  almost  c,»i.- 

tiguous     and    adjoining    tracts,   and     there     was    only   a 
small  vacanrv  brtwren  them;  bnt  by  extending  the  twelfth 
line  of  Singfrifx  Trm'tin*  .S7/-f///iv    tu    the    Mirrvptititm- 
"beginning  trees  of  P&ticoatf*  /,<KW."  a-  now  contended 
f(»r  by    .SYrtqrri'/,    tlierr4  \\ill    be  created    a  vacancy  of  382 
acres  between  the  two  tracts,  which  the  relator  contends  is 
not  the  fact,  but  that  it  is  an  imposition  in  Sinxery.    Tliat 
at  the  time   Sinziry'ii   Trotting    Strcr/nm   was   MU  \ eyed, 
there  was  a  rule  or  law  of  the  land  office   prohibiting 
surveyors  from  expressing  calls  in  any  certificates   of  sur- 
veys made  bv  them  under  anv  warrant  from  that  oflice;  and 
that  the  call    in    the   certificate   of  Sii>x>'r!/'fl    TrouliuL 
Streams,  is  in  direct  violation  of  thut  rule,  as  will   appear 
by  recurring  to  the  rules  of  the  land  uflue,  and  by  the  de 
position  of  Cu/./cr,  the  surveyor,  now  filed.     Prayer,    \ 
the  certificate  and  patent  of  ^in^ert/'s    Trouftng  -V" 
may  be  vacated,  or  corrected,  so  as  to  exclude  the  cull, and 
restrict  Singery  to  the  courses  and   distances    specified  in 
the  certificate,  and  for  further  relief,  &c.     The  unxn-t:?  oi 
Singe.ryt  the  defenilant,  states  that   commissioners   were 
appointed  by  the  Lord  Proprietary  to  make  sale  of  hi- 
served  lands,  or  of  parts  thereof,  and  the  defendant   brin- 
in  possession  of  two  surveys  within  the  reserves   of  JJulti- 
inorc  county*  the  one  called  AJerrymatC*   Moimtuin^    and 
the  other  called  Pttlicont's  Loose,  purchased   the  same   of 
the  commissioners,  and  he  believes  the  two  parcels  of  laud 
vere  reduced  into  one  entire  tract  under  the  authority   of 
f'(tJ<ler,  but  not  by  him,  for  the  defendant  states   that   his 
survey  and  certificate  were  made  out  by  a  deputy  of  Calif- 
er,  who  usually  made  the  surveys  in  the  reserves  of  Jtalti- 
morc.     That  his  object  in  the  pmvhase  and  survey  w;u  to 
join  his  two  tracts;  and  a  survey  he  admits  was  made  call- 
ed Snidery's  Trontitcj  Xtsunns,  and  returned  to  the  oflice, 
on  which  patent  afterwards  issued  to  the  defendant.    That 
he  does  not  know,  nor  was  he  ever  privy,  to  any   fraud  or 
deception  in  making  the  survey  or  cu'tith  ate  of  that  land; 
nor  does  he  know,  admit  or  believe,  there  was    any.     lie 
admits  the  call  in  the  certificate  greatly  increases  the  quan- 
tity of  his  land,  but  he  states  the  cull  was  essentially  oe- 


OF  MARYLAND. 

ces«ary  <p  join  his  two  tracts  together,  which  was  the  ob-        1809 
ject  of  his  purchase,  and  ifthe  surveyor  mistook  the  length      c— v— -> 

r  r  -.         f  -*U  *i  Sinf-ery 

or  line,  or  quantity  or  acres,  it  was  not  with  the  consent,  v» 

Attorney 

knowledge  or  privity,  ot  the  defendant.  He  does  not  be- 
liove  the  certificate  recorded  in  Collier's  book  to  be  a  true 
copy  of  his  certificate;  and  that  Colder  is  grossly  mistaken 
in  two  important  tacts,  ami  those  facts  are  misconceived 
and  mistaken  in  the  bill  of  complaint.  That  Colder  never 
did  make  out  or  sign  a  certificate  of  Sing  cry's  Tronting 
Streams  for  the  oflice,  but  that  the  same  was  made  out, 
signed  and  returned,  by  the  deputy,  and  is  now  in  the  of- 
fice, and  it  was  usual  and  customary  for  Colder' a  deputy 
so  to  do  with  his  assent,  as  will  appear  by  a  great  number 
of  original  certificates  in  the  land  office,  made  out  at  th,e 
very  period  when  the  defendant's  was,  and  sonxcof  them  on 
surveys  made  in  the  reserves.  That  the  certificate  return- 
ed to  the  office  is  the  true  and  genuine  certificate  of 
Singcry's  Treating  Streams,  which  was  made  out  for, 
and  delivered  to  him  as  such,  by  Colder  in  person,  to  whom 
the  defendant  carried  it,  and  the  same  has  a  call  to  the 
beginning  trees  of  Petticoat's  Loose,  which  was  a  well 
known  place,  and  intended  to  be  run  to  and  called  for; 
and  the  defendant  can  prove,  that  on  the  original 
survey  made,  the  beginning  trees  of  Petticoat's  Loose  were 
actually  run  to,  and, he  offered  such  evidence  on  the  trial 
of  the  ejectment  cause  referred  to  by  the  bill  of  complaint, 
which  testimony  the  general  court  refused  to  admit.  The 
defendant  does  not  pretend  to  know  what  may  have  been 
the  rules  of  the  land  office  at  that  time  as  to  the  calls,  but 
Colder  is  mistaken  in  his  deposition  filed,  because  there 
are  many  certificates  in  the  office  made  out  and  signed  by 
him,  of  surveys  at  that  time  of  reserve  lands  similar  to  the 
defendants,  in  which  Calder  hath  inserted  calls.  The  de- 
fendant  denies  afcl  fraud,  combination,  $.c.  'J'hat  the  ca'J 
in  his  certificate  and  patent  were  of  such  notoriety,  ami 
hi.s  possession  o(,  aud  the  beginning  trees  of  Petticoat's 
Loose  were  so  well  known  to  the  neighbourhood,  and  to 
the  surveyors  in  the  county,  that  younger  surveys  were 
made,  which  called  for  aijd  run  with  the  line  apu  to  the 
call  mentioned  in  the  'defendant's  patent,  as  is  demon- 
strated by  the  location  of  the  tract  of  land  catted  Horatio's 
Lot,  on  the  plot  filed.  That  the  defendant,  actuated  by 
the  most  honest  principles,  made  a  resurvey  yn  his  (and  iq 


CASES  IN  TIIK  I'CirRT  OF  APPEALS 

1809.         170-2,  and   included  the  whole  of  his  lands,  ami  returned  ;t 
*"— "v~"'        cerl  i lie  at  t;  to   the   office,  and    the  execs*  of  the  number  n! 

acres  Mas  called  surplus;  that  lit-  \\;>>  \\iilinjr  to  pay  for  it. 
i.iU'-). General 

and  made  his  resurvey  with    tliat  intent,  but  by  reason  of 

the  act  of   1"85,  ch.    81,  the   treasurer  could    not  receive 
such   payment,  and  it  was  not  until  after  t!.,-  tiou 

tiiat  the  rclator,  combining  and  lea^um;:  with  Caldtr,  who 
to  rover  his  own  ncgji.uiMUT  ai.d  malc.onduct  in  office,  com- 
bined with  the  relatur  to  cheat  the  defendant  out  of  his 
land,  and  recommended  (lie  re-la  tor  to  take  up  the  Mirplu* 
as  vacancy,  which  Caldcr  \\.\»  to  support,  by  throwing  all 
lilamc  on  his  deputy,  although  the  records  of  the  land  of- 
fice, falsify  the  oath  of  (\<l>lcf  in  two  es>entia!  facts;  first, 
they  show  that  it  v. a*  customary  f«ir  his  deputies  to  make 
out  certificates  and  si-n  i,U  name;  and  secondly,  that  In; 
himself,  in  certificates  made  out  and  si^i^d  by  him.  did 
give  calls.  He  admits  the  action  of  ejectment  instituted 
in  the  treneral  court  hv  the  le»s;.>e  of  the  relator,  for  reco- 
very of  part  of  the  defendant's  land,  included  in  the  i 
tor's  tract  called  fioreinp's  Hubitation  Pock,  but  the  facts 
never  came  to  issue;  that  the  case  wa«  determined  on  a 
point  of  law,  to  which  a  bill  of  exception.-  was  taken,  and 
the  judgment  of  the  court  was  appealed  from,  and  the  ap- 
peal will  go  up  to  the  court  of  appeals  in  June  next.  He 
does  not  believe  the  relator  is  entitled  in  anv  court  of  law  or 
equity  to  a  vacation  of  the  defendant's  original  giant,  the 
same  cats  only  originate  in  a  ill  lire  to  ruin  and  oppre.-s  the 
defendant:  Lmau-c  if  the  rclator  ultimately  succeeds  in  the 
court  of  appeals,  a  decree  to  coii\eya!l  the  ('HHM!. 
ri^ht  and  title  to  the  relator,  in  iVc,  of  all  the  land  con- 
tained in  his  patent  of  JJorcing's  Habitation  l!c>ck,  will  be 
sufficient  He  further  states,  that  he  claims  the  whole  of 
the  land  included  in  his  patent  called  Sin^cri/'s  7 
Xlrcams;  that  the  call  was  an  honest  one;  that  the  tra< 
land  called  Mcrryuum's  .'  and  l'<(ttcoat':i  /,oa,vr, 

never  did  lay  contiguous  or  close  to  each  other,  but  a! . 
lay,  were  located  and  held,  as  by  the  table  of  courses  tl. 
of  on  <he  jilot  filed;  that  the  sur\ey  \vas  n-.ade  by  a  deputy 
of  ('alder  named  Jumm  //«//,  who  made  out  the  cei  tilica: 
•was  common  with  CWt/fr's  deputies  in  UK  .  and  that 

fW/c/erdid  not  himself  make  the  same  out;  and  the  de- 
fendant believes  the  mistake  exists  on  CaMir's  books;  that 
the  entry  was  made  therein  from  the  depu 


HANSOX.  Chancellor,  (December  G,  1805.)  The  chan- 
cellor has  considered  the  petition  of  the  defendant.  It  ap- 
pears to  him  convenient  to  both  parties  in  this  cause  to 
grant  the  prayer  of  the  petition,  instead  of  having  proceed- 
ings, which  would  have  the  same  effect  as  is  proposed  l>y 
the  petition,  and  would  be  attended  with  delay  and  ex- 
pense. It  is  therefore  ordered,  that  the  prayer  be  grant- 
ed; and  that  the  record  of  the  proceedings  in  the  ejectment, 
stated  in  the  petition,  be  filed  in  this  cause,  and  taken  as 
part  of  the  proceedings  therein. 

The  record  was  accordingly  filed;  and  the  case  was  ar- 
gued, and  submitted,  to  the  chancellor  for  his  tlcciaiyu. 


OF  MARYLAND.  493 

and  the  call  omitted  to  be  inserted;  that  (lie  call  did  exist       180P. 
in  the  original,  and   was  actually  bona  fide  run  to  at   the      ^™v~^ 
time  of  the  survey:  and  the  defendant  oujrht  not  to  lose  his 

J  .  . 

land  from  the  fraud,  negligence  or  mistake,  of  Colder  aiul 
his  deputies. 

The  testimony  of  a  number  of  witnesses  was  taken  un- 
der commissions  and  returned.  The  defendant  after- 
wards by  his  petition,  (referring  to  the  proceedings  here* 
in  set  forth,  and  to  the  action  of  ejectment  depending 
between  the  parties,)  stated  that  the  judgment  of  the  gene- 
ral court  in  that  action  had  been  reversed  in  the  court  of 
appeals,  and  the  record  returned  to  the  general  court,  with 
a  procc'lcnifo  directing  a  new  trial.  That  since  this  cause 
has  been  set  down  for  hearing  in  this  court,  the  action  of 
ejectment  remanded  to  the  general  court  for  a  new  trial,  has 
been  tried,  and  a  verdict  rendered  in  favour  of  the  defendant. 
(ante,  455.)  That  on  that  trial,  the  general  court  gave 
a  direction  to  the  jury,  that  if  the  certificate  of  Singery's 
Troitiing  Streams  was  forged,  that  the  patent  thereon  is- 
sued was  void,  or  an  opinion  to  that  effect.  But  on  a  full 
and  fair  trial  before  the  jury,  a  verdict  was  rendered  in  fa- 
vour of  the  defendant,  by  which  the  fairness  of  the  certifi- 
cate, and  validity  of  the  patent  was  ascertained.  That  in- 
asmuch as  theie  facts  have  happened  since  this  cause  had 
been  set  down  for  hearing  in  this  court,  he  is  apprehensive 
that  hi:  will  not  be  able  to  avail  himself  thereof,  without 
the  order  of  this  court.  Prayer  fur  liberty  to  exhibit  as 
proof  the  record  of  the  proceedings  in  the  ejectment,  and 
that  the  same  may  be  taken  as  part  of  the  proceedings  in 
this  cause. 


i   \-l.S  IN  THK  COURT  OF  A1TKALS 

Chancellor,    (July  term,  1806.)     The  object  «>f 
»v — *       the   bill    i»,    that    I'M.-   .  I'Hitiraie   and    patent   of  Sin«tri/'y 
'ini,-  \,v,  </*;,y,  theiein  mentioned  ID  liavc  been  fraudu- 
lently obtained,  may  In-  vacated  and  annulled,  en  cui'ifctcd 
ill  flu-  manner  <.t;il»-d. 

It  \vas  lik-d  on  the  l«)lli  of  November  1TW,  at  whidi 
time  us  the  In  /mrriu-j  li;id  obiaim-d  a  \i-nlict  and 

jm'«;ment   in  his  favour  in  au  ejectment  for  the  land,  from 
vhkh  X'ji^'ri/ had  appealed. 

Ou  the  I  Sib  of  November  \' <}'>,  a  petition  was  presented 
to  the  late  chancellor  by  Sini.-trt/.  Matinu;  the  venlict  and 
and   also  statijij;  that  the  jml^iniMit   had  been  re- 
and  that  on  the  suit   b.'in;;   a^ain    tiiod,  a   verdict 

s  reiidercd  in  his  favour,  ;unl  piavin^  that  the  record  of 
the  proceeding!  in  t!>e  ejectment  ini^lu  be  takt-o  a>  part  of 
tin*  proceedings  in  this  r-uu.-i%;  which  prayer  \va»  graiitvd, 
as  appears  by  the  order  of  December  »5ib,  IKO.i. 

The  proceeding^  liave  according!}  l>eon  tiled,  and  from 
their  coMu-xion  vith  1he  other  totimonv,  the  chancellor 
lias  felt  considerable  dirtk-uliv  in  forming  his  opinion. 

Me  was  at  first  persuaded  that  this  verdict  was  either 
conclusive  as  to  the  question  of  (rand,  or  of  such  weight 
as  to  prevent  his  drawing  a  dillVrent  conclusion  from  the 
vhole  of  the  evidence.  The  authorities  on  this  sul.jf.  I 
arc  not  very  clear.  The  case  most  in  favour  of  this  nosi- 
lion,  i:»  Cmi'triccix!  rs.  Monimtnt.  -2  I'n-iwn.  ^."5?,  in  which 
I'.ia  court  declared,  that  the  question  was,  whether  an  as- 

li'nent  was  fraudulent  or  not;  and  that  tavin^;  bersi  tried 
ut  law  there  was  uo  room  for  equity  to  ink-rlVre;  that  if  they 
sliuuld  relieve  the  phintitV,  tliey  must  declare  that  not  ty 
In-  fraudulent  in  equity  which  was  found  to  be  ?o  at  la-«. 

!J«t  un  fur: her  consideration  he  has  changed  his  opinion, 
on  the  folldwing  grounds:  That  the  suit  in  tliis  case  rc- 
1'encd  to,  havini:  been  an  ejectment,  the  verdict  is  tiiit  final 
between  the  partie*,  but  anuthei  ejc-cti.ient  may  be  brought. 
()»  MJclv  furtln-r  riiit  tiie  verdict  may  be  uivi-n  in  e\iileuve 
tin  the  opinion  of  t\\ »•!%•.•  meii  on  the  fact,  but  it  cannot  be 
i  on1. 1'l-^f,  as  that  would  be  to  defeat  the  object  of  the  suit. 
\  •!  it  in  a  court  of  law  tb-  (jue^tion  of  fraud  n;ay  be 
again  examined,  it  cannot  be  closed  against  a  court  of 
equity,  in  which  fraud  is  the  great  i-ubject  of  relief. 

!i  mu^t  be  ad'...ilU.l  also,  that  the  recynl,  v.hich  is  <hut 
made  part  of  the  proceedings,  cannot  have  a  greater  e8ec.t 
.  uar  lu  this  suit,  t'.iua  if  it  i.ad  been  astd  as  a  pita. 


OP  MARYLAND-  493 

A  decree  determining  the  rights  of  the  parlies  might  be        l£09 
pleaded  to  this  bill,  and  so  might  a  judgment  of  a  court  of      *^~^^ 
la\r,  but  it  must   be  a  judgment  which  has   finally  deter- 

Attoriiej-Uvnml 

mined  the  rights  of  the  parties. 

The  chancellor,  considering  himself  thus  empowered  to 
inquire  into  the  fraud  alleged  in  the  bill,  is  satisfied  from. 
the  evidence,  (notwithstanding  the  verdict  showing  the 
opinion  of  the  jury  to  the  contrary,)  that  the  charge  is  es- 
tablished, and  that  the  complainant  is  entitled  to  relief. 

[n  addition  to  the  particular  object  of  the  bill,  as  herein 
before  stated,  there  is  a  prayer  for  general  relief,  and 
Jtoreingi  at  whose  relation  the  bill  is  filed,  is  satisfied  that 
Singenfs  patent  should  remain  valid  for  such  part  of  the 
land  as  is  not  included  in  the  patent  for  Boreing'%  Hubi* 
tal ion  Hock,  and  it  appears  that  for  so  ihuch  the  public  had 
been  paid  by  Singery.  Tt  is  therefore  considered  proper 
in  this  case,  and  conformable  to  the  practice  in  similar 
cases,  to  decree  a  conveyance  from  Singe.n/  of  the  part 
claimed  by  Boreing,  instead  of  vacating  the  patent  to 
bingery,  as  prayed.  Decreed,  that  Gingery  do,  by  a  good 
and  sufficient  deed,  &c.  give,  grant,  &c.  to  Boreing,  and 
his  heirs,  all  that  part  of  the  land  in  Baltimore  county, 
iiow  held  by  him  under  his  patent  for  a  tract  of  land  called 
{Singery's  Troitting  Streanis,  A'hich  is  comprehended  in 
the  lines  of  a  tract  of  land  called  Boreing's  Habitation 
Rock,  which  was  granted  by  this  state  to  Ezckicl  Borclng 
on  the  24th  of  April  1T95,  beginning,  &c.  with  all  and 
singular  the  appurtenances,  &c.  and  all  the  right,  title  and 
interest,  df  Singery,  therein  and  thereto.  And  upon  the 
due  execution  and  acknowledgment  and  recording  of  the 
deed,  Borc.ing  shall  be  entitled  to  hold  the  same  free,  clear 
and  discharged,  from  all  claim  of  the  defendant.  And  - 
that  the  defendant  pay  to  the  complainant  the  costs  of  this 
suit,  &c.  From  this  decree  the  defendant  appealed  to 
this  court. 

The  cause  was  argued  before  CHASE,  Ch.  J.  GA.NTT, 
and  EARLE,  J. 

Shaaff,  and  Johnson,    (Attdrney-Gtncrnl,)    for  the  Ap- 
pellant,  cited    Undrrwood  vs.    Morduani,    9,    Ttr/j.  238. 
Bright  vs.  Eynon,  1  Burr.  376.     Fermor's  case,  3  Ci>kc, 
78.     1  Fonbf.  13,  (notes.)      Moses  v.s.  Macferlan,  3  Burr. 
1009;  and  A'egro  James  vs.  Gaither,  (ants  176.) 


4fiG  CASES  IN  THE  COURT  OF  APPEALS 

nid  T.  B> 

^-v— »        I.  '.  .".    ll'.-n:;.    : 

ww.'i.  /V*.  ?.-' 

210.      Sface  vs.  J/ahbolt,  2  /  c*.  ..  liar 

'!"•,•    !'\oprictar\/  vs.  .h.inin.ti,  1   //arr. 

A-.l/'//oi. 

457.      77<e  s  t  //c/rr.  ^  M  lien.  G;   aud  Car- 

re.'* j/i  i  j.  CWe,  1  //«/•/•.  <$•  Johns.  570. 

•=E,  Cli.  .T.  delivered  the  opinion  of  the  court.  To 
the  ejectment  brought  by  the  lessee  of  Jioreing,  for  Z?orr- 
<;>^*s  Habitation  flock,  against  .V'//^»TJ/,  the  question  in 

between  the  parties,  on  tlie  (li.Tciont  i  <>n  the 

plot?,  v.-as.  v.-lif)  was  entitled  to  that  part  of  /forcing's  Ha- 
bitation fiorl:  which  was   covered   by  or   included    within 
:fnj's  Trotting  fifrcamr.*     This  q'-i^stion  miejit    have 
been  decided  on  the  different  rorlificale.s  ai  nf  t!.e 

ich  evidence  as  might  hr  jiu-d  v.'/.at 

he  true  location  of  the  respective  tracts    claimed    by 
Ihe  litigating  parties.      It  appears  by  tin-   ir-.;u» 
inony  in  this  case,  that  the  certificate  and  grant   «.| 
ry's  TfOi'fi»£  Streams  are  older  <han    the  certificate  and 
grant  of  /i  or  ring's  Habitation  Kuck,    and    would    have  a 
preference,  so  far  as  the  riinilictin^  grants  interfered. 

To  rt'pel  the  defendant's  defence,  and   to   impeach   hi- 
title,  the  plaintiff  offered  to  prove,   that    the  certificate  of 

n/'.s  Trouting  Streams  w.is  forced,  and  the  evidence 
for  that  puij  .;dinitted  by  the  court;  and  such  evi- 

dence could  not  have  been  deemed  admissible  by  the  court, 
•  •n!y  on  the  ground  that  if  it  wa«  proved  to  be  forged,  the 
grant  obtained  on  it  was  fraudulent,  and  could  not  have 
;iiiy  operation  in  law  to  pa-^s  the  land  to  the  defendant. 
That  decision  must  rest  on  the  principle,  that  what  corn- 
rices  in  iniquity  must  transmit  its  impure  or  deleterious 
fluidity  to  the  grant  which  was  intiMidnl  to  perfect  or  com- 
plete the  title  of  the,  party,  and  will  invalidate  it,  un 
live  Proprietary  was  apprised  of  the  tnal-praclice  before 
fee  inraitig  the  grant.  The  evidence  in  a  court,  of  law, 
and  in  a  court  of  equity,  to  impeach  thnn,  is  the  same, 
p-irol  evidence  being  admissible  in  both — the  effect  ami 
final  result  U  rhr>  same.  In  chancery  trio  patent  U  vacat- 
ed, and  the  j'j.I/MH-tit  and  decree  are  declared  to  be  nulli- 
und  the  parly  U  enjoined  from  proceeding  further  on 


Ofr  MARYLAND.  4-07 

th'efii.     In  a  court  of  law,  the  judgment  is  that  they  can-        1809 
not  and  di  not  transfer  or  pass  any  ri«rht  or  interest.     In  a       ' — *""-'' 

1  .         .  sinsrery 

court  of  law,  the  mode  of  examination    is  preferable,  be-  v» 

Allorney-Guueral 

cause  the  evidence  is  better  sifted,  and  more  critically  in- 
quired into,  and  the  credit  of  the  witnesses  is  better  test- 
ed. Where  frauds  are  clearly  established,  the  courts  of 
law  and  a  court  of  chancery  have  concurrent  jurisdiction. 
In  some  cases  it  may  be  necessary  to  resort  to  a  court  oC 
chancery  to  compel  a  discovery  of  facts  and  circumstances, 
which  are  confined  to  the  knowledge  of  the  parties,  in  or- 
der to  prove  a  fraud;  which,  it  is  believed,  is  the  only  rea- 
son why  the  applications  are  more  frequent,  in  cases  of 
fraud,  to  the  court  of  chancery,  than  to  a  court  of  law.  If 
the  evidence  was  improperly  admitted  because  the  opera- 
tion of  a  grant  cannot  be  questioned  in  a  court  of  law  for 
fraud  in  obtaining  it,  then  the  verdict  of  the  jury,  finding 
for  the  defendant,  cannot  conclude  the  plaintiif  as  to  the 
fact  whether  the  certificate  was  forged  or  not.  But  what 
principle  is  it  which  allows  a  court  of  law  to  be  competent 
to  inquire  into  fraud  and  collusion  in  obtaining  a  judgment 
or  decree,  and  to  declare  such  judgment  or  decree  inope- 
rative to  pass  any  right  or  interest,  which  does  not  extend 
to  a  patent?  A  judgment  or  decree  must  stand  on  as  higli 
authority  as  a  patent.  In  this  case  the  fact  of  forgery  came 
before  the  court  and  jury  collaterally,  and  was  not  direct- 
ly in  question,  the  issue  between  the  parties  being,  who 
had  the  right  of  possession  to  the  land  in  controversy? 
and  therefore  the  verdict  cannot  be  received  as  evidence  to 
prove  that  the  certificate  was  not  forged.  It  may  very 
Well  be  questioned,  as  the  court  were  not  called  on,  and 
did  not  direct  the  jury  if  they  found  the  certificate  forg- 
ed, that  nothing  passed  by  the  patent;  and  as  the  jury  might 
suppose,  notwithstanding  the  certificate  was  forged,  that 
the  prior  grant  ought  to  prevail,  and  could  not  be  affected 
by  it,  whether  the  verdict  could  conclude  the  plaintiff  if 
the  fact  of  forgery  had  been  directly  in  issue. 

Although  on  a  bill  in  chancery  charging  forgery,  the  de- 
fendant cannot  be  compelled  to  answer  any  fact  which  will 
criminate  himself,  yet  the  court  of  chancery  has  jurisdic- 
tion over  the  case;  and  on  proof  of  the  forgery,  by  which 
a  fraud  has  been  committed,  will  grant  iclief  by  vacating 
the  grant  or  deed  from  whence  the  injury  has  arisen,  or 

VOL.  H.  63 


498  CASES  IN  THE  COURT  OF  APPEALS 

1809.        Vill  make'  «uch  decree  aS  the   circumstance*  of  the  case 
**" ""^jr"""'       render  necessary. 

The  court  arc'  of  opinion,  that  the  forgery  of  the  certifi- 
cate of  Singer i/' n  Tniittin^  Streams,  and  the  fraud  con- 
sequent thereon,  have  been  fully  established,  and  aftirm 
the  decree  of  the  court  of  chancery,  tvith  costs'  to  the  ap- 
pellee. 

(JAXTT,  J.  dissented. 

DECREE    AFFIRMED. 


DECEMBER."  HUXTT  &  PARKS  vs.  GIST,  et  a!, 

ed™rp'^t£e7i'f  APPEAL  from  a  decree  of  the  Court  of  Chancery.  The 
EluSr**!»Mtt  filed  by  the  appellees  against  the  appellants,  on  the 
NTnd  UT.n.V-  lGt!l  of  January  1795,  stated  that  Ifi/lium  Parka,  deceas- 
"I'in^i  'that'  "h.-  ed,  was  seized  and  possessed  of  a  tract  of  land  in  Jhilli 
hi.'"'«n"hu<rr?lr!i't>,»»orc  county  called  Turkey  Cock  »£//<N/,  containing  50  acre*, 
iw  aer'il>of'>iami  which  by  virtue  of  a  special  warrant,  wax  on  the  I  Oth  of 

C»;i«-<l  /'  V),  vllIXI'-.    -      .  \     C  \    •  L  -i-  1 

in  the  county  oijuly  17o4  resurveyed  for  him,  and  a  certificate  thereof  rr>- 
tr'nanm  Then'-un-  turned  into  the  land  office,  by  which  he  caused  (o  be  aiMod 
unpertainin^now  j  02  acres  of  land  supposed  to  be  vacant.-  and  consolidated 

in  the    po^-rion  g 

or  oecui>»ti;,ii  r>r  t|ie  whole  into  one  survey  by  the  same  name  of  Turkey 

the    iai«l    Vf    P."  J       •'  •' 

on  ibiii  inchan-  Coc/c  Alleii.     That  Park*,  ncsfectinj  t<x  compound  for  the 

erry  lur  «  »|i«-\tic  w 

^w'ThaT  th^re  a(l^e(l  vacancy  within  the  time  required,  a  proclamation 
irm,'oiTiie7lo"a"warrant  wa§  thereupon  granted  to  Edward  Stevenson,  and 
Sn7  °  a«cnrip.?.?n  he»  0"  the  2-2d  of  February  1  764,  assigned  the  same  to 
hi|KiiT"hnytifi«ic"»UiIa  Furks,  who  by  virtue  of  the  warrant  of  proclamation  atad 
d?n«^  '»P"not  Vd-  i  assignment,  on  the  28th  of  the  same  month*  had  resurvey- 
ih»t'it  wmliit  "ii7  ed  for  him  the  added  vacancy  before  mentioned,  excluding 

««l  by  the   partn-i  ..  .  ...         ...  ,-       ,  . 

thai  they  »rre  to  seven  acres  thercoi  as  oeittz  wnhiD  the  lines  of  elder  sur- 

br  Initl   off  at  die- 

rmth.mmcrtt  pnn  veys,    and   upon   the  rcsurvcv   caused   to  be  added    the 

nfthe  tract.   That        J    '  .  r 

the  bond  i«  >.,.  i  quantity   of  127    acres   of    vacant   land,    iiiviiij;    tn    the 

fur       uncertain').    ' 

riccpt    on    the  Wh0le  the  name  of  Parki's  Death  Knot;  and  on  the  5th  ot 

pnneiplc  of  rl.  c- 

»ion,   «nd    that  March  1T64  ,  he  obtained  a  patent  on  the  certificate.    Tmrt 

Ih'Ttf     W»«    H1^   fTI- 

ti".Therr»«7uy  on  the  14th  of  April  1764,  Parks  executed  and  delivered 
r!rh'r'of?heJpv-  to  Joshua  Cockw,  deceased,  a  bond  of  conveyance  Tor  120 
l^oro™^  acres  of  the  land  called  Parks"  s  Death  Knot,  by  which 
i>,iV|»rt  bond  it  was,  as  the  complainants  believe,  intended  to  ge- 
b?1  "K^  cure  to  Cockeu  120  acres  of  the  vacancv  added  on  the  procla- 

nd.,  ti.  one  .  n       ,    , 

rminuu  matlon  warrant,  formms  the  southernmost  parts  ot  J'arks7* 

f«ir  mid 


•Ml  bou 

of  i 


afidr 
«»fll 


t*  «»fll»e  l*od  cuUTeycU  to  him,  without  notice  that  there  «rw  any  <J«ignation  of  the  JiO  acwi. 


OF  MARYLAND.  499 

Death  Knot.     That  before  Parks  obtained  the  assignment        1809. 
from  Stevenson,  (which  was  procured  by  Cockey,)  or  at  the 

f  *r  /,      ;  i 

tune  oi  sucli  assignment,  it  was  agreed  between  1 arks  and 

Oiit 

Cockey,  that  as  Parks  was  unable  to  pay  the  caution  mo- 
ney on  the  certificate  to  be  returned  in  virtue  of  the  as- 
signment, Cockcy  should_  pay  the  same,  and  should  have, 
for  such  payment,  120  acres  of  the  land,  to  be  secured  by 
the  certificate;  in  consequence  whereof  Cockcy  did  pay  the 
caution  money,  and  thereupon  patent  issued,  as  before  stat- 
ed, to  Parks,  and  the  bond  of  conveyance  was  given  in 
pursuance  of  the  agreement.     That  Parks,  in  his  life  time, 
although  he  never  made  any  conveyance  in  pursuance  of 
the  bond,  always  acknowledged  the  right  of  Cockey,  and 
always  was  ready  and  disposed  to  make  the  conveyance. 
That  Parka  died  about  10  years  ago  intestate,  leaving  a  son 
named  William  Parks,  (one  of  the  defendants,)  of  full  age, 
his  heir  at  law,  who  hath  also  at  different  times  acknow- 
ledged the  bond  of  conveyance,  and  the  equitable  right 
thereby  created.      That  Cockcy  ificd  some  tiine  in  1765, 
having  first  duly  made  his  will,  dated  the  3d  of  December 
1764,  whereby,  among  other  things,  he  devised  as  follows: 
f 'Item.  I  give  and  bequeath  to  my  eldest  daughter  Penelope 
J)cye  Cockci/,  100  acres  of  land,  being  part  qf  a  tract  of 
land  known  by  the  name  of  Parka1  s  Death  Knot,  lying  in 
the  county  aforesaid,  which  said  parcel  of  land  I  give  and, 
devise  unto  her  and  her  heirs  for  ever;"  and  of  the  said  will 
constituted  and  appointed   Thomas  Cockey  Deyc  sole  exe- 
tutor.     That  Jonhua  Cockey  left  the  complainant,  Thomas 
Deyc  Cockey,  his  eldest  son  and  heir  at  law,  then  an  infant 
\inder  the  age  of  21  years,  and  also  the  other  children  men- 
tioned in  the  wjl|.      And  that  after  the  deaMi  of  Joshua 
Cockf.y,  his  executor  proved  his  will,  and  took  out  letters 
thereon,  and,  among  other  papers  of  Joshua  Cockci/,  came 
to  the  possessiop  of  the  bond  of  conveyance,  and  kept  the 
same  in  his  possession  until  the  4th  of  February  1793, 
when  he  delivered  it  to  the  complainant,  T.  D.  Cvckcy,zs 
heir  at  law  qf  J.  Cockey.     That  Penelope  Deye  Cocjtey,  af- 
terwards intermarried  with  Thomas  Gist,  and  she  $nd  her 
husband  are  two  of  the  complainants  in  this  cause.     That 
Thomas  Deyc  Cockey,  one  of  the  complainants,  believing 
that  the  whole  of  the  land  intended  to  be  secured  by  the; 
b  >nd  of  conveyance  was  meant  to  be  devised  to  Penelope  _ 
Dcye  Cockey,  now  Gist,  by  the  wjll  of  Joshua  Cockeyt*l* 


900  CA>ES  IN  THE  COURT  OF  APPEAL^ 

1809.        though  only  100  acres  are  (herein  mentioned,  did  on   the 
17th  of  January  1794,   execute   a  bond  i.f  conveyance,  by 
vlm-h  he   bound  himself  to  coivev  to    her,  in   fee,  all  his 
right,  title  and  inteicst,  in  ihc  said  land.     That  on  the  19th 
of  December  1789,  Parks,  the  younger,  sold  and  convey- 
ed part  of  Parks' s  Dtath  Kital  to  Jub  Iluntf,  (one  of  the 
defendants?)  and  that  the  land  included,  within  the  metei 
and   bounds  in   thai  coiiv«-\  m<  <\  is   the  south  east  part  of 
tlie  land  intended  to   be  secured    by  the  bond  of  convey- 
ance before  mentioned;  and  that  Ilimlt  had  full  knowledge 
of  the  bond,  and  had  seen  and  read  it,  and  well  knew  the 
premises  at  the  time  of  his  purchase,  and  before  the  mak- 
ing of  the  conveyance  to  him.     That  on  the  13th  of  March 
1790,  Parks,  for  the  purpose  of  indemiiifxing  and  securing 
fluntt  from  all  claims  against  the  land  so  convened  to  him, 
did  by  another  deed  convey  to  him  in  fee  all  the  residue  of 
Parks'*  Death  Knol,  with  proviso  that  if  Park*  should  in- 
demnify him  from  all  claims  against  the  land  first  convex  nl 
to  JIuntt,  the   last  mentioned  conveyance  should    be  void. 
That  on  the  10th  of  April  1790;/3mfct^MWMg  the  other  lands, 
conveyed  to  Ifunllin  fee  all  the  tract  called  Turkey  CockJll- 
/et/, with  an  exception  as  to  a  small  part  thereof,  and  also  all  the 
tract  called  Parka's  Death  Knol,  excepting  51  acres  there- 
of before  conveyed  to   Ilunlt  by  the  deed    first  herein  re- 
ferred to,  and  also  excepting  120  acres  of  that  tract,    for 
which  the  bond  of  conveyance    was    give.n.      That  1'arl,*, 
the  elder,  at  sundry  times,   and  down    to  the    time   of  his 
death,  applied  to  JJcye,  as  executor  of  Corky,   to  pay  va- 
rious assessments  and  charges  on  the  120  acres  of  lain!  in 
the  bond  of  conveyance  mentioned,  allc»iti^,    that  as    the 
land  belonged  to  the  estate  of  Cockty.  all  iLm..^   thereon 
ought  to  be  paid  out  of  his  estate;  in  coriscqiu  nee  of  which 
applications  Deye,  as  executor  of  Cock<ij,  paid  ;i!l  siuh  as- 
sessments and  charges  a=  were  exhibited  to  him  by  Parks, 
\vho  acknowledged  the  bond  of  conveyance,  and  that    the 
iteration  of  the  bond    had  bet  11    dulv  paid,    and    fie- 
quently  offered   to  JJn/c  to    make  him  a  conveyance  of  the 
land  mentioned  in  the  bond,    a»  executor   of  Cocknj,    &.c. 
That   in  the  deed  of  conveyance   last   before   referml   to, 
Parks,  the  younger,  and  llunU,  (the  defendants,)  have  both 
acknowledged    the  bond  of  conveyance,    and  an  exiting 
right  under  and  in  virtue   of  the  same.    That    Ilnnif,  in 
consequence  of  the  conveyances  to  him  from  Park*, 


OF  MARYLAND.  501 

entered  into  and  taken  possession  of  the  land  therein  men-        1809 
tioned.      Prayer,  tha,t  the  defendants  mav   be   compelled       ^--*~v^> 

Huiitt  fc  I'arks 

to  convey  to  the  complainant,  Penelope  Dcije  Cist,  in   fee  v? 

simple,  or  to  such  of  the  complainants  as  may  be  thereto 
entitled,  the  HO  acres  of  land  by  the  bond  of  conveyance 
meant  and  intended  to  be  conveyed;  and  for  other  and 
further  relief,  £c. 

Exhibit^  (among  others.)  The  bond  of  conveyance  from 
Parks  and  wife,  to  Joshua  Cockey,  dated  the  14th  of  April 
3764,  in  the  penal  sum  of  £500,  and  conditioned  as  fol- 
lows: "The  condition  of  this  obligation  is  such,  that  if 
the  above  bounden  WilKtan  Parks,  and  Eleanor  his  wife, 
and  each  and  every  of  them,  and  each  and  every  of  their 
heirs,  executors,  administrators  and  assigns,  do  and  fchall, 
upon  demand  and  at  the  request,  cost  and  charges,  of  the 
above  named  Joshua  Cockey,  his  heirs  or  assigns,  well  and 
truly  convey  and  assure,  or  cause  to  be  conveyed  and  as- 
sured unto  him,  the  said  Joxhua  Cockey,  his  heirs  and  as- 
signs, for  ever,  al)  the  estate,  right,  title  and  interest,  of 
them  the  said  William  Parks,  and  Eleanor  his  wife,  and 
their  heirs,  and  each  and  every  of  them,  of,  in  and  to,  one 
hundred  and  twenty  acres  of  land  called  Parkas  Death 
Knot,  situ  ate,  lying  and  being,  jn  the  county  of  Baltimore 
aforesaid,  with  the  appertenances  thereunto  belonging  or 
appertaining,  now  in  the  possession  or  occupation  of  them 
the  said  William  Parks,  and  Eleanor  his  wife,  by  such 
sufficient  conveyances  and  assurances  in  the  law,  as  by 
the  said  Joshua  Cockey,  his  heirs  or  assigns,  or  his 
or  their  counsel  learned  in  the  law,  shall  advise  and 
require;  then  the  said  obligation  to  b,e  void  and  of  none 
effect,  or  else  to  be  and  remain  in  full  force  and  virtue  in 
law." 

The  answers  of  the  defendants  stated,  among  other 
things  which  it  is  not  material  to  notice,  that  they  were  to- 
tally ignorant  for  what  consideration  the  land  was  to  be 
conveyed,  or  what  part  of  the  land  was  intended  to  be  con- 
veyed; and  they  did  not  know  or  admit  that  the  southern- 
most or  south  easternmost  parts  was  intended  to  be  'convey- 
ed under  the  bond  of  conveyance.  That  Cockey,  or  any 
person  claiming  under  him,  never  was  in  possession  of  any 
part  of  the  land— nor  did  they  ever  hear  at  any  time  that 
Cockey  was,  by  virtue  of  the  contract,  entitled  to  the  south- 
or  south  easteinmo&t  part.  That  Pcndop^  ope  p,f 


6C3  <  ^SES  IN  mi.  roriiT  OK  AITKALS 

1R09.        the  complainants,  came  of  full  age  1  j  years  p:»*t  or  more, 
anil  T.  /).  CocLrit,    (one   other    of  the   complainants.)  not 
less  than   1 }  or  1  2   \rar-  past.     That  Purks,  tlie  grantor, 
and  after  l»is  death,  /'MI-/-*,  the  son.  were  willing  to  comply 
M  ith  the  bond  of  conveyance,   and  cunvo}  to  ('nckcy,  or  to 
whomsoever  was  entitled  under  the  bond,  whatever  land 
they  were  thereby  cu;>iled  to  have  coin  eyed  to  them;  b,ut 
no  person  chose  to  come  forward  and  in  uivt-  a  coin  fvance, 
or  ascertain  what  part  of  the  land  he,  she  or  they,  were  en- 
titled to  under  the  said  contract.     That  pn  the  i2Sd  of  Oc- 
tober 1789,  Parks,  being  desirous  tf  veiling  the  residue  of 
the  land  to  extricate  himself  from  difficulties  under  which 
he  then  suffered,  did  advertise  publickly  in  the  Maryland 
Journal  and  Bultimort  ^Idt-frtinei^  vc«iuc#tiiig  any  person 
vho  was  entitled  to  the  benefit  of  the  bond  of  conveyance 
to  appear,  prefer  their  claim,  and  receive  a  conveyance  for 
the  land  they  might  be  entitled  to  thereby.     That  T.  I). 
Cockry  and  1'cnthpc  Dtyt  (list,  were  then  both  of  full  qge, 
and  that  neither  of  them  did  apply  to  receive  the  convey- 
ance, although  thus  called  upon.      That  Parks  was  at  that 
lime  under  execution,  and  had  no  method  of  freeing  him- 
self therefrom  but  by  a  sale  of  some  part  of  his  lands. 
That  he  applied  to  7/to»//,  and  proposed  to  sell  him  a  part 
of   his  lands  in   order  to  raise  nioney  to  free  himself'  from 
the  execution;  and  in  consequence  Ihinlt  purchased  from 
Parka  the  lands  mentioned  in  the  dt'cU  of  the  HHh  of  De- 
r ember  1789,  which  was  then  supposed  to  contain  31  acre*, 
for  which  Huntl  paid  six  dollars  per  acre.     That  the  land 
being  found  to  contain  I'ight  and  a  quarter  acres  more,  he 
paid  for  the  surplus  on  the  15th  of  March  1T91,      That 
Jlwitf  was  induced   to  purchase  the  particular  part  of  the 
land   described   in   that  deed,  because  it  lay  adjoining  to 
lands  which  he  then  owned;  and  the  greatest  part  (hereof 
actually  ran  in,  an^l  lay  between,  twp  tracts  of  land  owned 
by  him.     That  Ihmlt  had  seen  and  knew  of  the  bond  of 
conveyance   which   had  been  so  executed  by  /W,,v,  the 
older,  to  •/.  Cofftry,  and  had   advised  with  counsel  as  to 
the  efl'ect   then-of,    and   it  wa*  by  the  advice  of  coin 
that  he  made  his  purchase.      That  on  the  10th  of  April 
1790,    Parks  executed   a  deed  to   lluntt    for  the  land* 
therein  mentioned,  which  was  intended  to  secure  to  Httntt 
the  payment  of  £88  3  6,  then  due  to  him,    with  interest 
}Iu*tt  admitted,  that  on  the    13th  of  March  1790,   Pgrkt 


OF  MARYLAND.  503 

executed  in  due  form  of  law  another  Conveyance  (6   hini,         1809 
tl»te  object  and  intention  of  which  was  to  secure  and  gua-       ^^-vO 

J  IIuiut&  I'iirli* 

rantce  to  him  the  lands  first  sold  to  him;  that  after  deduct-  *» 

ing  the  lands  so  conveyed  by  Parks  to  Huntt  by  the  first 
conveyance,  there  remained  a  greater  quantity  of  Parks's 
Death  Knot,  than  was  contracted  by  the  bond  ot  convey- 
ance to  be  conveyed  to  Cockcy.  That  they  were  instruct- 
ed, that  after  the  length  of  time  which  had  elapsed  since 
the  execution  of  the  bond  of  conveyance,  without  the  com- 
plainants either  possessing  the  land  so  alleged  to  have  been 
contracted  to  be  sold  to  their  father,  or  claiming  an  execu- 
tion of  the  contract,  the  complainants  were  not,  nor  was 
either  of  them,  entitled  to  the  aid  of  this  court  specifically 
to  execute  the  contract  to  the  prejudice  of  Hunt  I,  who  i.s  a 
purchaser  for  a  valuable  and  bona  fide  consideration;  and 
they  claimed  the  beriefit  of  the  laches  of  the  complainants, 
and  of  those  under  whom  they  claimed,  and  of  the  length 
of  time,  as  fully  and  to  all  intents  and  purposes  as  if  they 
had  pleaded  the  same,  and  relied  thereon  for  their  plea. 

Testimony  was  taken  and  returned  under  a  commission; 
and  the  lands  were  directed  to  be  surveyed,  and  a  plot 
thereof  was  returned. 

KILTY*  Chancellor,  (July  term  1806.)  The  chancellor 
is  of  opinion  from  the  evidence,  that  the  bond  of  convey- 
ance was  Intended  to  secure  120  acres  of  the  vacancy  add- 
ed on  the  proclamation  warrant  taken  out  by  Edward  Sle- 
vcnson,  and  assigned  to  Fftyliam  Parks,  on  which  a  sur- 
vey was  made  the  28th  of  February  1764,  as  appears  by 
the  certificate  returned  to  the  land  oftke,  being  in  the 
whole  127"  acre?.  And  also  that  it  was  intended  to  exclude 
the  part  added  as  the  third  vacancy,  although  the  third  va- 
cancy is  returned  as  containing  only  six  acres.  The  first 
awl  second  vacancy  added  arc  returned  as  containing,  the 
one  six,  and  the  other  1 15  acres,  making  together  121  acres 
instead  of  120,  which  it  may  be  inferred  from  the  evidence 
they  were  supposed  to  contain  by  the  parties  to  the  bond. 
The  complainant,  Penelope  Dcye  Gist,  is  therefore  entitled 
under  the  will,  and  bond  of  conveyance  from  Thomas  fitye. 
CocAttt/,  which  are  not  contested,  to  a  conveyance  for  that 
part  of  Parks's  Death  Knot,  which  is  claimed  by  the  bill. 
The  part  of  Parka's  Death  Knot  which  was  conveyed  by 
the  defendant  William  Parks,  to  the  uther  defendant, 


50 1  (ASKS  IX  THE  COURT  OF  APPEALS 

1309          Job  Httntt,  by  the  deed  of  the    10th    of  December    1730, 
-rated  therein  to  contain  31  acre--,  and  by  the  morf^i^-- 
of  the  13th  of  March  1700,  the  re-idue    U   aUn  coir, 
to  him,  thereby  vesting  in  him  the  le^al  title  in  the   whole. 
Ami  inasmuch  as  /'u /•/.-.<  has  an  equitable  title    to  the  resi- 
due, and  by  joining  in  the convevanrc  for  the  pirt  convey- 
ed by  him  to  IlunH  will  not  be  bound   to  make    a  general 
warranty,  or  be  liable  to  any  risk  or  loss  thereby,  it  is  con- 
sidered that  a  joint  deed  will  be  tin-  most  proper  to 
the  legal  title  in  the  complainant,  Pcnc'.opc.  Dei/e  Gist,  ac- 
cording to  the  bonds — Decreed ,  thaf  the  defendants  shall, 
by  a  good  deed  to  be  executed  by  them,  and  acknowledged 
and  recorded  according  to  law,  i;ivp,  «;rant,  &c.  to  the  com- 
plainant, Penelope  Drt/e  Gist,   and  her  heirs,  120  acres  of 
land  called  Park? a  Death  Knot,  situate,  &c.  the  said  1  :<t 
acres  being  part  of  a  trar.t  of  land  resurveyed  for   William 
Parks,  deceased,  father  of  Jf'il/iam  Parks,  »me  of  ihe  defen- 
dants, on  the  assignment  of  Edward  Sievm-ion,  on  or  about 
the  28(h  of  February  17G4,  and  patented  to  IHlfiam  Parks, 
deceased,    on  or  about  the  15th  of  March  1704;  to  be  laid 
oflTas  follows,  to  witr  To  include  the  whole  of  the  first  va- 
cancy described   in  the  certificate  of  the  rcsurvey,  to  be- 
gin at,  &c.  containing  six  acres;  to  include  also  the  serond 
vacancy  described  in  the  certiGcateof  the  resurvey,  to  begin, 
&c.  containing   115  acres,  except  one  acre  thereof,  which 
one  acre  is  to  be  taken  off  by  extending  reversely  the  16th 
line  of  the  resurvey  on  Turkey  Cock  JHleyi   on  which  the 
proclamation  warrant  was  taken  out,  &c.     And  all  the  es- 
tate. &c.   of  the  defendants  therein,   and   which    was  in 
JTiliiam  Parks,   deceased,  and  all  and  singular  the  here- 
ditaments and  appurtenances  to  the  same  belonging,  or  in 
anv  manner  appertaining.     And  upon  the  due  execution, 
at kmmleil^mcnt,  and  recording  of  the  deed,  the  complai- 
nant, Penelope  Drye  Gist,   her  heirs  and  assigns,  shall  be 
entitled  to  hold   (lie  said  land   free,  clear  and   discharged, 
f.-nm  all  claim   of  the  defendants,  or  either  of  them;   the 
said  conveyance  bein^  in   satisfaction  of  the  bonds  in  the 
proceedings  mentioned.     Decreed  also,  that  the  defendants, 
and  each  of  them,  deliver  up  to  the  complainants,  T/wmas 
(iixf,  and  Pmelope   Dei/e   Gist   his   miff,    the   quiet  and 
praceable  p<>^>'-^ion  of   the  land   hereby  decreed   to  be 
tom-yedj  and  that  they  pay  to  the  complainants  the  costs 


OF  MARYLAND.  003? 

of  this  suit,  &c.     From  this  decree  the  defendants  ap*       1809. 
pealed  to  this  court. 

Hunt 

The  cause  was  argued  before  CHASE,   Ch.  J.  GANTT,          Oot 
and  EARLE,  J. 

Martin  and  Price,  for  tlie  Appellants,  referred  to  Co. 
Lilt.  145.  2  /tec.  Jth.  tit.  Election,  (B)  443.  Taylor 
vs.  Stebbert,  2  Vcs.  jr.  437.  A/oor,  72,  case  197.  /%• 
ward's  case,  2  C0A:e,  36. 

Johnson,  (Attoiney  General,)  and  Winder,  argued  for 
the  Appellees. 

CHASE,  Ch.  J.  delivered  the  opinion  of  the  court.  The 
court  are  of  opinion,  that  in  the  bond  of  conveyance  from 
William  Parks,  senior,  to  Joshua  Cockey,  there  being  no 
designation  of  the  120  acres  of  land  to  be  conveyed  to 
Cockey,  nor  any  description  thereby  the  same  could  be 
identified  and  located,  parol  evidence  is  not  admissible  to 
show  that  it  was  intended  by  the  parties  that  the  120 
acres  were  to  be  laid  off  at  the  southernmost  part  of  the 
tract  of  land  called  Parks's  Death  Knot.  That  the  bond 
is  void  for  uncertainty,  except  on  the  principle  of  elec- 
tion; and  there  is  no  evidence  to  prove  that  there  was  any 
election  made  by  either  of  the  parties,  or  their  represen- 
tatives, anterior  to  the  time  of  the  execution  of  the  deed 
from  William  Parks,  junior,  to  Job  Huntt,  on  the  19th  of 
December  1789.  That  Hunlt  was  a  fair  and  bona  fide 
purchaser  of  the  land  conveyed  to  him  by  that  deed,  with- 
out  notice  that  there  was  any  designation  of  the  120  acres 
to  be  conveyed  in  virtue  of  the  bond  of  conveyance  to 
Cockey,  or  his  heirs.  That  Penelope  Deye  Gist  is  entitled 
to  a  conveyance  of  120  acres  of  land,  part  of  the  222 
acres  of  vacancy  secured  by  the  proclamation  warrant 
taken  out  by  Edward  Stevenson,  and  assigned  to  Parks, 
the  elder.  Decreed,  that  the  decree  of  the  court  of  chan- 
cery be  reversed,  with  costs  to  the  appellants,  and  that  the 
appellants,  by  a  sufficient  deed  or  deeds,  convey  to  Pene- 
lope Deye  Gist,  one  of  the  appellees,  and  her  heirs,  120 
acres  of  the  vacancy  of  222  acres,  to  be  laid  off  together 
in  one  body,  if  practicable,  if  not,  so  as  to  be  most  conve- 
nient, exclusive  of  the  land  conveyed  to  Huntt  by  Parks, 
the  younger,  by  the  deed  of  the  19th  of  December  1789, 
vot  it  64 


306  CASES  IN  THE  COURT  OF  APPEALS 

1809.       anil  exclusive  of  the  land  conveyed  by  Parks  to  Arabella 

That  the  court  of  chancery  make  all  nee. 
orders,  and   take  measures  for  having  this  decree  curried 
into  full  and  complete  eftect. 

DECREE    REVERSED,    &.C. 


THOMAS  vs.  THOMAS. 

APPEAL  from  Frederick  County  Court.  Trespass  f6r 
RktMy.'tiMi  Breaking  and  entering  the  close  of  the  plaintiff,  (now  ap- 
££[£&to*£  pellec.)  called  The  Itesurvey  on  Hazzard.  The  defendant, 
Jnfund-S'p^-  (the  appellant,)  pleaded  the  general  issue.  A  warrant  of 
SStattoapoiMfrttorvey  was  ordered  and  issued,  and  the  lands  in  dispute 
rWniiiA^Mr,  were  located  and  plots  returned.  The  plaintiff  at  the  trial 
twwnhhUnJiDd  in  August  1806,  offered  in  evidence  the  patent  of  Tfic  lle- 
t.  Mi  UK-  surveii  on  Hazzard.  granted  to  Notlcu  Thomas^  on  the  14(h 

wvm.1  I  in.,  from 

ih.it  P..i,,t  <0  r<r-  of  February  1754:  that  the  patentee  entered  arid  died  MM/. 

f>m  €iih«-r  |xiiii'«, 

•iio    ms.k.a  on  e(|    an(|    that  the    plaintiff  is  his  heir  at  law,  and  entered, 

I'M-  pint',  »«    ilm- 

iiionti    tin.,    t*.  £,c>     jie  further  offered  in  evidence  the  plots  and  explana- 

n    them;   ami 

if  die  dr'eiidmit  tjon8   anj  f|ie  patents  for  the  several  tracts  of  land  locat- 

xiai    it     no    IIIIK-  I 

t^'i^M^'frer  w'id  e(l  thereon  by  him,  and  that  the  same  are  truly  located  by 

wchi«*lhlnul;jiut  h'm  on  the  plots.     He  also  offered  evidence,  that  the  de- 

nrt"hit»V.r  to  "he  fendant  had  cut  down,  cleared  and  cultivated,  part  of  the 

^,1°"'  p^l'mHy  land  within  said  locations;  that  the  plaintiff  in  1800,  before 

•ar?onicrto°»»id  this  suit  was  brought,  forewarned  a  person  who  was  work- 

iii"  under  the  direction  of  the  defendant  within  said  loca- 

O 

tions,  not  to  cut  on  his  land,  and  which  person,  having 
given  the  information  to  the  defendant,  was  directed  by 
him  to  cease  cutting  there.  He  also  offered  evidence,  that 
he  had  at  two  different  times  told  different  persons  that  he 
expected  one  day  to  get  the  land  now  in  controversy,  but 
the  defendant  was  not  present  at  either  of  those  ron 
tions,  and  did  not  appear  ever  to  have  heard  of  this  claim.' 
Tin-,  defendant  then  read  in  evidence  the  patent  of  a 
tract  of  land  called  Mordund,  granted  to  him  on  the  28th 
of  June  1784.  He  also  gave  in  evidence  the  plots  and  ex- 
planations, with  the  several  locations  by  him  made  there- 
on, and  offered  to  prove  that  such  locations  were  truly 
iiimlr.  lie  also  read  in  evidence  a  record,  with  the  plot* 
and  explanations  belonging  thereto,  of  an  action  of  trespass 
instituted  in  Frederick  county  court  by  the  plaintiff,  against 
him  the  defendant,  for  breaking  and  entering  the  close  of 


OF  MARYLAND. 


507 


ihe  plaintiff  called  The  Restirvcy  on  Hazzanl,  to  which  the 
defendant  appeared  and   pleaded  the  general  issue,  and  a 
warrant  of  resurvey  issued,  and  the  lands  in  dispute  were 
located  on  plots  made  and  returned  in  that  action.     At  the 
trial  in  that  suit,  the  jury  gave  their  verdict  that  the  de- 
fendant was  not  guilty  of  the  trespass  complained  of,  and 
the  plaintiff' was  nonsuited.     He  also  offered  evidence,  that 
the  plaintiff  and  defendant  in  that  action,  and  in  the  pre- 
sent action,  are   the  same  persons,  and  that  the  tracts  of 
land,  so  far  as  in  that  record  located,  are  the  same  as  located 
in  the  present  suit.     That  the  pretensions  and  locations  of  - 
the  plaintiff  on  the  plots  in  that  record,  of  the  land  called 
The  Resurvey  on  Hobsori's  Choice,  from  the  end  of  the  4tst 
line  thereof  to  the  end  of  the  44th  line,  correspond  with 
the  location  as  made  by  the  defendant  on  the  plots  in  thin 
cause.     He  also  offered  evidence,  that  the  plaintiff  in  1782 
acted  as  surveyor   to  run   the  division  lines  between  the 
plaintiff  and  defendant,  and  that  the  lines  were  run,  and 
an  apple  tree  was  marked  at  the  end  of  the  41st  line  of 
The  Resurvey  on  Hobsori's  Choice,  in  the  presence  of  the 
plaintiff  and  defendant,  as  a  corner  between  them.     That 
from  the  apple  tree  so  marked,  the  plaintiff  run,  as  divisi- 
onal lines  between  himself  and  the  plaintiff,  the  lines  located 
by  him  on  the  plots;  and  that  the  defendant  has  ever  since 
that  running  been  cutting  and  clearing  the  land  on  the  west 
side  of  the  said  divisional  lines.    Other  evidence  was  give  a 
by  the  defendant,  which  it  is  unnecessary  to  notice,  it  hav- 
ing no  relation  to  the  point  decided  by  the  court.    The  de- 
fendant then  prayed  the  opinion  of  the  court,  and  their  di- 
rection to  the  jury,  that  if  from  the  evidence  they  find  that 
the  plaintiff,  twenty  years  before  the  institution  of  this  suit, 
run  his  land  in  presence  of  the  defendant  to  the  aforesaid 
apple  tree,  as  a  boundary  between  his  lands  and  the  lands 
of  the  defendant,  and  the  several  lines  located  by  him  as. 
divisional  lines  between  them;  and  if  the  defendant  has  at 
no  time  committed  any  trespass  over  said  divisional  lines, 
that  in  such  case  the  defendant  is  not  a  trespasser,  and  not 
liable  to  this  suit,  unless  he  was  previously  warned  or  for- 
bid to  come  to  said  lines.     But  the  county  court,  \_Bucha- 
nan,  Ch.  J.  Clagett  and  Shriver,  A.  J.]  refused  to  give  the 
direction  as  prayed.      The  defendant  excepted;  and  the 
verdict  and  judgment  being  against  him,  he  appealed  to 
this  court. 


1809 


CASES  IN  THE  COURT  OF   APPEALS 

The  cau?e  was  argued  before  CHASE,  Ch.  J. 
CAN  IT,  and  EARLE,  J.  by 

Harper,  for  the  Appellant;  and  by 
for  the  Appellee, 

JUDGMENT  AFFIRMED. 


DECEMBER.  BEURT,  use  BURGESS'S  AdmV.  vs.   NICHOLLS. 

^  VF.XIMTIOM  EXPONAS.  A  judgment  was  rendered  in 
'Inn-i*'!  tne  late  general  court  at  May  term  1791,  in  favour  of  '•'. 
in.TK1,  Btrry  against  £.  Aicholls  and  6'.  Jivrgess,  on  which 
••.d  ilT'uid  ou*  writs  of  execution  regularly  issued,  but  were  not  execut- 
•dJuin""rator,!fhc  ed,  until  the  14th  of  July  1806,  when  a  writ  of,  fieri  facia* 

p.iii!    lh«-    unvMint  .   .  .  "...     .      ,. 

of  nir  juH.nn.  in  was  issued.  returnable  to  this  court,  against  Aficnol 

to  H.whnJ.K-cUcl 

the  j»dem«it  to  survivor   of    B\tTKt*t*  whose  death   was  suggested,   and 

ntl  for  the 

«i«-  of  the  aJmi-  Wa.s    returned    by  the  slicriff.   "laid   as  pr.   schedule,   not 

m»t  nine  ol'C      A  J 

'•'    ™t?-  sold,  &.c.v  The  schedule  described  the  propeitv  .IN  follow: 

••ird  tor  the 

i,e  arfn.i-  Vi7>  "(>ne  house  and  lot  in  the  town  of  Upper  Murlbor( 

nnfralor  Of  C,  Inr 


of  Jo//?l     IloilFCS    of    TkOOtlU;    aiid    iintt 

mM?on'o!*HS'.t!'1  'touse  and  lot  in  the  town  of  Upper  filarlborovgh,  occupied 

tenu.,,1,  VW,M.  by  /j/,//;;,  7;  /?0i.£r?  Esquire."     The  plaintiff'  gave  diiec- 

•  lions  in  writing  to  the  clerk  of  this  court,  dated  (lie  1 

of  Augn>t  1M.'.\  to  have  the  judgment  he  had  obtained 
again-t  E.  A"<  <:/*<.»//«,  arid  C.  Burgess  as  security,  entered 
for  the  use  of  Dennis  M.  Burgess,  adm'r.  of  C.  Burgess^ 
the  money  having  been  paid  to  him  by  said  Burgess.  On 
the  10th  of  November  1809,  the  present  writ  of  vendil'wni 
erponas  issued  for  a  sale  of  the  above  property,  and 
endorsed  for  the  use  of  Dennis  M.  Burgess  administrator 
of  Charles  Burgess,  and  was  returned  by  the  sheriff,  that 
the  property  remained  unsold.  &c. 

Motion  on  the  part  of  the  defendant  to  quash  the  writ 
of  tenditioni  eyponas,  for  the  following  reasons:  1.  Be. 
cause,  in  the  description  of  the  property  tr  ken  under  the 
firri  facias,  there  was  not  such  certainty  as  the  law  re- 
quires. 2.  Because  the  judgment,  wherenn  the  execu- 
tion issued,  was  obtained  against  the  defendant  and  (\ 
Jlurgtss,  and  by  the  endorsement  on  the  execution,  and 
the  note  of  the  plaintiff  to  the  cleik,  filed  in  court,  it  ap- 
peared, that  before  issuing  the  fieri  facia*  the  judgment 
wiw  sati*fad,  and  the  execution  was>  issued  /yr  tin  tist  of 

' 


OF  MARYLAND. 

tlic  administrator  of  one  of  the  original  defendants  against 
the  other. 

The  motion  was  argued  before  CHASE,  Ch.  J.  NicHot- 
sox,  GAXTT,  and  EARLE,  J.  by 


r,  for  the  motion;  and  by 
Clagelt,  contra. 

THE  COURT  sustained  the  motion,  and 

VENDITIONI    EXPONAS 


INDEX 


OF  THE 


CONTAINED  IN  THIS  VOLUftXXL 


A. 


ABATEMENT, 

1.  An  appeal  or  writ  of  error,  standing 
under  rule  argument,  does   not  abate 
by  the  death  of  either  party.     Lynch 
v  Colgate,  37  C  mite.  J 

2.  The  act  of  1797,  ck.  114,  s.  4,  direct- 
ing, "that  if  a  cause  in  the  court  of 
chancery  is  set    down  regularly  for 
hearing,  or  submitted  to  the  chancel- 
lor, and  one  of  the  parties  dies  there- 
after, and  before  a  decree  is  passed, 
the  cause  shall   not  abate,   and   the 
chancellor  may  decree  as  if  such  par- 
ty were  alive,"  cannot  take  effect  in 
a  cause  where  there  might  be  a  de- 
cree for  a  reconveyance  of  land  to  the 
party  dead,   on   paying  or   bringing 
money  into  court.      Brogdcn  v  Wal- 
ker's Ex'r.  285 

3.  On  the  death  of  a  defendant  in  an  ac- 
tion of  debt,  &c.  a  summons  may  issue 
to  an  executor  de  son  tort,  (there  be- 
ing no  legal  executor  or  administrator 
of  the  deceased),  to  appear  to  and 
defend  the  action.      Norfolk  v  Gantt, 

435 
See  Ejectment  27. 

ACCOUNT. 

See  Cause  of  Action  1. 

ACCOUNT  IN  BAR. 

See  Discount  4 
— —  Evidence  59. 

ACKNOWLEDGMENT. 

See  Evidence  51,  77. 

•        Limitation  of  Actions  9. 

ACKNOWLEDGMENT  OF  DEEDS. 

1.  Where    deeds,  defectively   acknow- 
ledged by  femes  covert  grantors,  were 


held  not  to  pass  the  estate  in  the  lands 
to  the  grantees.  Greene  v  Muse  ei  al. 
Lessee,  6:J 

Ilollingsworth  et  ux.  v.  Mf Donald  et  a/. 

230 

2.  A  literal  adherence  to  the  form  of  the 
certificate  of  the  acknowledgment  of 
a  deed  by  a  feme  covert  is  not  essen- 
tially requisite;  and  the  omission  of 
words  deemed  essential  can  be  sup- 
plied by  the  substitution  of  words  e- 
quipollent,  or  of  similar  import  and 
signification.     1 'fallings war th  et  ux.  v 
McDonald  et  al.  237 

3.  If  a  grantor  of  land,  residing  in  a  par- 
ticular county,  and  having  a  tempora- 
ry residence  in  another  county,  in  nei- 
ther of  which  counties  does  the  land 
lie,  acknowledges   the    deed   in  the 
county  in  which  his  temporary  resi- 
dence is,  such  deed  is  not  good  and 
valid  in  law  to  pass  and  transfer  the 
grantor's  interest  in  the  land.     Hull  v 
Gii 'tings' '3  Lessee,  383 

4.  A  temporary  residence  in  any  county 
of  the  state,  is  not  sufficient  to  enable 
a  grantor,  being  a  citizen  of  the  state, 
to  acknowledge  a  deed,  during  such 
temporary  residence,  for  land  lying 
in  any  other  county  of  the  state. 

Ib.  390 

5.  The  words  "legally  authorised  and  as- 
signed," in  a  certificate  of  the  clerk 
of  a  county  court  to  a  deed  acknow- 
ledged  before    two    justices    of    the 
peace  of  that  county,  is  a  substantial 
compliance  witli   the  directions,  anil 
within  the  meaning  of  the  act  of  No- 
vember 1766,  c/i.  14,  and  are  words  of 
the  same  import  a*  "duty  cominitusion- 
ed  and  sworn,"  Ib. 

ACTION. 
See  Auctioneer  1. 


f.VDKX. 


•  Covenant  2,  5,  C. 

ACTS. 

•  person  will  be  permitted  » • 
fir.n  hU  own  acts.     He  cannot  set  up 
••gc   un<ler  an  insolvent  law 
.>4aTi''"i  his   prior  acts.      I)-*- 
QmtaoviKj,  411 

2.  If -i  mortgagor  of  slaves  *«Jb  them  for 
a  full  consideration,  and  after  hit  dis- 
charge uini ••!•  an  insolvent  law,  pur- 
chases them  of  the  mortgager,  his 

S'lb>  till;;-    his  t'r- 

tls  to  the  slaves,  will  ^nnre  in  law  to 
Confirm,  and  not  to  defeat,  las  con- 
tract with  tho  vendee.  Ib. 

ACTS  OF  ASSEMBLY. 

1.  Certain  acts  of  assembly  construed  or 
explained,  &c. 
J715,  c'i.  4V,  (Attachment.)          379 

,  eli.  1 , .».  -i,  (  Manumission.)       1 76 
1756,  dt.  17,  (Vesting  entailed  I 
&e.)  167 

~>,  s.    8,   (Assignment   to 

;•,-.)  2J8 

."(Nov.)  cA-  14,    (Certific  • 
th.-  ;:nent  of  a  Deed. )  389 

177*,,  (June)  rA.  1,  (Estate  Tail.)  69 
I774>  (March)  cA.  28,  (Insolvent  Debt- 
ors.)  61 

.   (July)  ch.    8,   (To  perpetuate 
\.)  396 

1730,  (Oct-)cA.  45,  49,  51  (Confisca- 
tion.) 96,  471 
1781,  (Nov.)  fti.  :0,s.  8, ( Escheat. )96 
17S2,  (Nov.)  rJi.  '.>.',,  (Estate  Tail.)  69 
17SJ,  r/i.  46,  (Discount.) 

cli.  72, *.  11,  (Uecording  a  Deed 

by  a  IK-ctv i'.)  281 

cA.  80,  (Vew  Parties.)  4J5 

1786,  eh.  45,  ('Descent.  Estate  Tail. } 

314 
1795,  eh.  56,  T Attachment.  J  344,  37^ 

1797,  ch.  110,  ».  2,  3,  f  Gaming. J     5 

ch.  1 14,  .*.  4,  ^Abatement.  J  285 

cA.  119,  ("Saving  Rights  fcc.J  96 

1798,  c/<.  101,  f  Executors  kc.  Aiidi-J 
tor.  435 

2.  An  act  of  assembly  directing  that  an 

auctioneer  shall  (five  bond  before  he 

,  if  the  fact  was  that 

the  license  was  obtained  prior  to  the 

-.f  the  bond,  it  was  capable 

of  proof,  and  in  the  power  of  the  par- 

d  himself  of  it  on  his 

plm  '•!    .•;  ii-  r:.l  prrformanrc,  :»nd  in- 

•!.:.»  f  i.-t  in  his  r -ji'lnJor  to 

••'mn  of  the  plaintiff  assiffn- 

•iie    breach.      M  Thr. 

,  i.'c.  41 


3.  A  repealing  ordinance  cannot  . 
or  affect  any  ri^ht  which  was  ar,. 
b\  any   person  under  the   first  onli- 
nance  In-fore  the  r'.-jx-:il  tln-r-.-of.     Id. 
4    The   intention   and   m<-.-\nini<  of  the 
i.iture  are  to  be  collected  from 
the  law  itself,  and  they  are  not  to  he 
in-.'d  by  anv  thing-  in  the  pream- 


ble.    iMidlrr  e     ouu 

5.  In  th.-  construction  of  mi   act  of  .is. 

•  ly,  the  intention  of  the  Ic^isla- 
ture  is  to  prevail,  an-1  i.s  to  be  collec- 
ted from  '  ,,f  the  law,  and 

t!u-  circ  i-i  ;;c-h  produccil  it. 

'  ft  nf.  f***ee  f  Ihtnt-ood.         167 

6.  Where  laixl  had  been   <!.-. 

to  Jii-,  son  H,  inlail  male,  r^inaindi-r  in- 
tail  male  to  his  eldest  HOII  C,  n-ni-.iiM.ler 
intail  male  to  histiiird  son  I),  remain- 
der  in  fee  to  his  two  K  and 

F,  as  tenants  in  common,  was,  on  the 
petition  of  H  to  the  Icgisl 
in:,'  that  he  had  nn\y  fmiiile  heirs,  (viz. 
two  dan-filters  L  and    M)  who    co'ild 
not  inherit  the  land,  wh'-rebv  it  would 

•  C,  ('.vho  united  in  th 
by  :i:i  acl  '>ft: 
ed  in  the  t>u-'d  _/"• 

and  wisi'gn*,  with  a  pro\i*o  that  if  Ii 
s!"viltl  h-ave  any  male  heirs  at  the  time 
of  his  death,  or  that  the  said  female 
heirs  should  not  have  i.^iic,  then  the 
land  should  d^.scen.l  -,rid  stand  limited 
a-  i  .y  the  will  of  A  is  de-vised.  \ 
wanls  B  had  a  son  bora  named  U,  who 
died  in  the  life  -time  of  H,  leaving 
three  daughters,  H,  J  and  K.  Dnr- 
•iie  life  of  G,  the  land  was  con- 
veyed to  him  in  fee  by  H,  of  which 
he  died  seized,  leaving  the  said  three 
daughters.  l\  aftrrw.-u-ds  died,  Icav- 
i"',r  i-  I,  and 

M,  who  entered,  S;c.  They  are  both 
since  dead,  M  having  survived  L, 
KavinT  a  dansr'.iter  N",  married  to  the 
defendant.  On  ejectment  brought  in 
the  name  of  the  lessee  of  H,  .1  and  K, 
the  three  daughters  of  <i  —  llrld,  that 
frjnalc  hi-ir.t  meant  tlie  two  daughters 
of  n,  and  that  an  estate  in  fee  simple 
1  in  them  to  be  defeated  on  the 
happening  of  two  contingencies,  1st. 
If  ii  Kl\  i^-viie  m-ih-  at  tlit-  time  of  his 
death,  and  id.  If  K  should  die  with- 
out leaving  issue  nrdr  at  the  time  of 
his  death,  and  his  two  '.  houki 

die    without   leaving   issue;  and    that 
the  pUintiir  was  not  entitled  to 
rer. 

•her  or  not  an  estate,  vested  by 
an  .ict  of  ass'-mtdy  in  two  persons, 
their  he'n-s  and  assign*,  is  a  joint  te- 
nancy or  tenancy  in  common  *  Ib. 


INDEX. 


513 


ADMINISTRATION. 

See  Executors  &  Administrators. 

AD  MINIS TRATOR. 

See  Executors  &  Administrators. 
Executor  Pro  Forma. 

ADMISSION. 

foe  Evidence  77. 

Judgment  2,  3. 

Location  of  Lands  3,  16. 

Special  Verdict  1. 

— —  Trespass  6. 

ADMISSION  OF  EVIDENCE. 

See  Evidence  33. 

ADVERSARY  POSSESSION. 

1.  No  adversary    possession  of  land   can 
avail   against   the    state,     flail  v  Git- 
tings  Jitn'rs.   Lessee.  112 

2.  An  advei-sary  possession  commencing 
against  the  Lord  Proprietary,    ceased 
to  operate  against  the  state  after    the 
act  of  confiscation.  Ib. 

3.  .Nothing  but   twenty   years   adverse 
possession  can  defeat  a  title  acquired 
under  a  grant.  Ib. 

4.  A  person  out  of  possession  for  more 
than  twenty  years,  where  there  is  not 
an  adversary    possession    in  virtue    of 
some  right   or  by    actual  enclosures, 
his  heir,    or  person    claiming1  under 
him,  may  bring-  an  ejectment  without 
an  actual  entry  into  the  land.      Ham- 
mond et  aL  Lessee  v  Warfield.          156 

5.  A    naked    possession,     (^possession 
without   right,  ^)   is  only  adversary  to 
the  extent  of  actual  enclosures,       Ib. 

6.  Where  the  defendant,  in  an  action  of 
ejectment,  was  in  possession   of  100 
acres  of  land   by  enclosures  and  cul- 
tivation for  15  years,  and  then  enlarg- 
ed his  enclosures  so  as  to  include  150 
acres,  and  he  possessed   the  same,    so 
enlarged,  by  enclosures,    for  6  years 
thereafter,   claiming-  the  same  as  his 
own. — Held,    that  he  had  title  to  the 

1  100   acres    by  adversary    possession. 
Hall  v  Git'ings's  Let^t-r.  391 

See  Kjectment  2,  3,  4,  6,  19,  20. 

Entry  1. 

Limitation  of  Actions  2,  3. 

AFFIDAVIT. 

See  Evidence  76. 

AGENT. 

•See  Court  of  Chancery  54. 

AGREEMENT. 

Sec  Contract. 
— —  Covenant. 

VOL.  IT.  65 


See  Overseer  1. 

Parol  Agreement. 

Special  Agreement. 

Warranty. 

ALIEN. 

1.  No  British  subject  could  hold  land  in 
this  state  on  the  19th  of  November 
1794,  the  time  when  the  treaty  was 
made  with  Great  Britain.  Owings  v 
Norwood's  L&Mec.  104 

See  Foreigners  1. 

Mortgage  4;  5. 

ALIENATION. 

See  Fieri  Facias  3. 

ALLEGATA  AND  PROBATA. 

1.  A  judgment  of  the  court  below  re- 
versed, because  there  was  one  count 
in  the  declaration  to  which  the  evi- 
dence dkl  not  a-nply.  Grant  v  Rids- 
daleetal.  186 

See  Assumpsit  1. 

Replevin  2. 

Variance  1. 

ALTERATION. 

See  Evidence  9. 

AMJ5IGU1TY. 

Sec  Covenant  1. 
— —  Grant  30,  36. 

ANCIENT  DEEDS  AND  RECORDS. 

See  Evidence  10,  ">6,  61. 

Inspeximus  1. 

Presumption  4. 

Specific  Performance  1. 

ANSWER  IN  CHANCERY. 

1.  An  answer  to   a  bill   in    chancery  is 
riot  to  be  considered  as  standing  good 
if  it  be  contrary  to  the  testimony  of  at 
least  two  witnesses,  or  of  one  witnes.i 
and  strong  equitable  circumstances. 
Nurwood  v  Ntrwood,  23  & 

2.  An  answer  to  a  bill  in  chancery  will 
prevail  unless  refuted  by  the  testimo- 
ny of  two  witnesses,  or  of  one  witness 
with  equitable  "circumstances.     Haj)- 
kins  v  Stump  et  al.  304> 

3.  If  inteiTogatories,  stated  in  a  bill,  are 
not  answered,  the  complainant  has  a 
right  to  except  to  the  answer?  and  if 
the   interrog-atories  are   proper,    the 
defendant  will  be  compelled  to  an- 
swer plainly,  fully  and  explicitly-     If 
then  any  material    matter  charged  in 
the   bill  has  been  neither  denied  nor 
admitted  by  the  answer,  it  stands  on 
hearing  of  the  cause  for  wuglil. 

Ib,  305 


J1-* 


INDIA* 


4.  Whether  or  not  the  Answer  of  one  of 
the  defendants  to  a  bill  in 
evidence  ag:«in.-.t  another  defendant* 
trMiaiiH  r  Mxtgion,  47* 

See  Evidenc 

— —  Preference  1. 

AN  IT  DATED. 
&e  Promissory  Note  3. 

APPEAL. 
See  Abatement  1. 

•  Court  of  Appeals. 

APPLICATION  or  PAYMENTS. 

1.  If  a  debt  is  due  on  mortgage  and  on 
open  account,  and  partial  payments 
are  made  by  the  debtor,  without  any 
application,  the  law  will  apply  the 
payments  to  the  mortgage  debt.  Dor- 
3ft/  c  Ga-^atrai/,  4 1C 

C.  r.iymcnts  made  by  a  mortgagor  are 
not  to  be  applied  to  discharge  a  debt 
due  on  the  mortgage,  in  favour  of  a 
purchaser  of  part  of  tlie  property 
mortgaged,  who  had  not  paid  tor  it, 
and  who  had  made  a  gift  thereof  to 
his  son  to  defraud  his  creditors.  H. 

ARRKST  OF  JUDGMENT. 

See  Covenant  8. 
Slander  1,  3. 

ASSETS. 
See  Distribution  1- 

Krecutors  Sc  Administrators. 

Foreign  La'.vs  4- 

Pleading  3,  4. 

Plenc  Atlministruvit  1. 

Preference  2. 

ASSIGNEE  !c  ASSIGNOR. 
&e  Court  of  Chancery  5. 

— —  Mortgage  »,  3. 

ASSIGNMENT. 

1.  Whether  or  not  an  attorney  at  law 
can  assign  to  the  surety  a  judgment 
obtained  against  principal  and 
where  it  has  been  paid  by  the  sure.ty, 
so  as  to  enable  him  to  take  out  exe- 
cution in  his  own  name  under  the  ai-.t 

of  i7r>3,  rh.  :.";,  s.  a>    QUL,-I. 

iiwd  v  Nurwood,  «J8 
Sec  Court  of  Chancery  S. 
KquiUblc  Assignment  1. 

ASSUMPS1T. 

1.  If  the  plaintiff  in  an  action  of  axtump- 
tit  tiles  an  account  in  court  containing 
the  items  of  his  claim  against  the  de- 
fendant, he  is  precluded  from  going 
Into  evidence  u>  establish  liis  claim  in 


a  manner  different  from  that  in  which 
he  has  elected  by  his  account  t>. 
sider  the  defendant   his  debtor.      // 

/  r  DC   l.n  -i^\ 

'2.  In    atmumjmit  for  one  Year's  sen  k-cs 
as  an  overseer,  and  a  ;jintttf'iin  mirttit 
for  such  services  —  /A///,  that    if  there 
was  a  special  agreement  between  the 
parties  for   the  plaintiff's    MT\>. 
an  overseer,  then  he  is  not  entitled  to 
recover  upon  his  declaration. 
nii:ti  r  iSYi/t'A  ailm'r, 

3.  The  amount  expressed  in  a  note,  pur- 
porting to  be  a  genuine   bank  note, 
hut   which  was  proved  to  be  forged, 
may  be  recovered,  in  an  action  of  </.«- 
xumpxit,    by  the   holder  of  the    note 
from  the  person  of  whom  he  received 
it,  although  at  the  time   of  its  receipt 
neither  party  knew  it  not  t<>  be  genu- 
ine,  fthd  tile  defendant  did  not  war- 
rant it  to  be   genuine,  or  endorse  i'. 
Min/d  v  li 

4.  U  and   J  sold  and  delivered  to  II  1'-, 
a  quantity    of  sugar,  under   a  parol  a- 
greement   with  J  K,  that   J  It 

pay  for  the  sugar  if  II  It  did  dot.  . I 
H  paid  n  and  J  for  the  sugar,  and  :m 
action  ofussumpsit  was  brought  in  the 
naniv-s  of  H  ana  .1,  for  the  u>«-  of  J  it, 

<-t   H    H  — //./(/,    that  the  I 
cr.uld   not  be    sustained.      linnu-*-    r 
Jilackittiiiir,  ft  al. 

5.  In   w.v.M//,//></V  on  a  foreign  bill  of  ex- 
change, the   pl.iintiif  is  to   ree<  • 
much  nioin-y  as  will,  at  the  time  of  the 
verdict,  purchase  u  similar  bill. 

tint  v    I'nylirr,  <k/U 

.  laranty  I. 
Limitation  of  Actions  9. 

ATTACHMENT. 

1.  The   plaintitf  on  a  judgirent   ofron- 
dciunation  on  an  att:iclniK-ut  on  judg- 
ment, where  there  was  no  furl  facia* 
on  such  judgment,    and  *ale  thereun- 
der of  the  laud  i-ondemuH-d,  docs  not 
ac((uirc   a  legal   estate  in   the  land  by 
virtue   of  the  judgment,   attaH. 

and  condemnation.  Uu\ngs  v  A'or- 
ti-tHxl'y  Isjaeei 

2.  An  administmtor  mr.y  issue  an  attach- 
ment  on    warrant    under  the    act    ol 
1795,  rh  56.     M.  Cm/  r  tin-tin'.*  nrini' 

344 

o.  A  sum  of  money  due  and  owin,. 
which   by  express   agreement    M 
be  paid  in  work  and  labour,  is  a  cre- 
dit which  may  lie  attnrhrd  in  virtue  of 
the  attachment    law-  of   in.S,   cA  40. 
and  1795,   ch  56.     LvuJerman  c  \\'il- 
ton.  -'.79 


INDEX. 


015 


ATTESTATION. 

•>'-/'  Presumption  4. 
• WUi  1,  2. 

ATTORNEY  AT  LAW. 

3.  A  receipt  given  by  the  attorney  of 
the  plaintiff  for  a  sum  of  money, 
stated  to  be  in  full  of  a  judgment,  is 
not  conclusive  evidence  that  the  judg- 
ment is  satisfied,  so  far  as  to  prevent 
the  plaintiff  from  taking1  out  execu- 
tion on  the  judgment  for  any  balance 
which  may  be  actually  due  thereon. 
Hughes  v  ODwinell,  324 

See  Assignment  I. 

AUCTIONEER. 

1.  A  person  who  intrusted  an  auctioneer 
with  the  sale  of  goods,  &c.  and  has 
a  claim  against  him  for  money  arising1 
on  the  sale  of  the  goods,  has  a  right 
to  apply  for  and  direct  a  suit  on  the 
auctioneer's  bond  for  the  recovery  of 
his  claim.  M'MecJien  v  Mayor,  &e. 
p/  Baltimore,  41  (nvlt} 

Set  Evidence  31. 

— • —  Pleading  6. 

AUDITOR. 
See  Executors  and  Administrators  8. 

AUTHENTICATION. 

1.  A  will  was  executed  in  Philadelphia! 
and  transmitted  by  the  testator  to  the 
Island  of  Alartinique,  and  a  copy  of  it 
proved  by  the  testamentary  executor, 
certified  by   a  notary  public  of  that 
island,    with    the   certificate   of  the 
chief  colonial    officer,  that  it  is  the 
signature  of  the  notary,  and  returned 
under  a  commission  to  take  testimo- 
ny, is  sufficiently  authenticated,  and 
may  be  admitted  in  evidence. 

De  So/try  v  Terrier  De  Laiftre,       193 

2.  How  far  the    proceedings  in  a  court 
in  a  foreign  country  is  leg-ally  authen- 
ticated, and  how  far  the  exemplifica- 
tion produced  contains  the  whole  pro- 
ceedings, &.c.  11}.  198 

o.  The  mere  showing1  the  seal  of  a 
court  pf  our  own  state,  .in  another 
court  of  the  state,  is  a  sufficient  au- 
thentication of  the  judgment  of  the 
court  it  purports  to  certify.  Ib. 

AVEUMENT. 
See  Shnder  I. 

B. 

BANK  AND  BANK  NOTE. 

See  Assumpsit  3. 

— —  Forged  Bank  Note* 


BARGAIN  AND  SALE. 

1.  Whether  a  frust  estate,   or  any  but  a 
legal  estate,   can    pass  by  a  deed  of 
bargain  and  sale '  llollingsiuorlh  et  «.r. 
r  M'l)onnM  ft.  al.  230 

2.  Whether  a  feme  rmert  can  pass   her 
real  estate  in  any  other  Way  than   by 
deed  of  bargain  and  Siife?  lb» 

See  Conveyance. 

Estate  Tail  2. 

feme  Cqvert  2. 

BEGINNING. 
See  Location  of  lands  5,  if. 

Verdict  1,  3. 

REQUEST. 

1.  A  bequest  to  a  ci'editor  does  not  ex- 
tinguish a  debt  or  claim  which  he  has 
against  the  testator.  Partridge  v 
Partridge,  63 

KILL  OF  EXCEPTIONS. 

1 .  A  paper  certified  in  a  record  trans- 
mitted'  on  appeal,  purporting  to  be  a 
bill  of  exceptions  taken  at  the  trial  of 
a  cause,  was  held  not  to   be  a  bill   of 
exceptions  in  the  case,  it  riot  appear- 
ing that  the  seals  oJ  the  judges  of  the 
court   belosv   had  been   affixed  to  it. 
/J«m  v  tl'ifson,  tt  id.  345 

2.  As  a  matter  of  practice,  the  evidence 
offered  to  the  jury,  on  which  the  opi- 
nion of  the  court  is  prayed,  ought  to 
be  state^   in  the   bill   of  exceptions. 
The  court  of  appeals,   however,   will 
retain  a  bill  of  exceptions  where  tb.0 
court   below  was  called   on  and   did 
give  a  direction  to  the  jury,  although 
no  facts  are  stated  therein.     Barnes  9 
Blacki&tan,  et  al.  37S 

BILL  OF  EXCHANGE. 

1.  In  assumpsit  on  a  foreign  bill'  of  ex- 
change, the  plaintiff  is  to  recover  as 
much  money  as  will,  at  the  time,  o£ 
the  verdict,  purchase  a  similar  bill. 
Brydcn  v  Taylor.  400 

See  Notary  Public  1. 

Promissory  Note. 

BILL  OT  REVIEW. 
See.  Court  of  Chancery  8,  9,  10,  11,  12, 
13,  14,  40. 

BILL  OF  REVIVOR. 

See  Abatement  2. 

—  Court  of  Chancery  20,  22, 

BILL  OF  SALE. 

1.  If  slaves  remain  in  the  possession  of 
the  vendor,  the  bill  of  sale'  must  be 
ackuowUdtfcd  and  recorded;  and  wlie- 


516 


INDKX. 


ther  or  not  they  remained  ia  his  pos- 
session, is  »  matter  of  fart  for  the  ju- 
ry; and  if  tlu-y  were  nut  in  his  pos- 
session, then  the  hill  of  s:iK-  is  not 
required  to  :<,.•  recorded,  and  it  i>  not 
rvulence,  although  it  has  li<  (  n  re- 
corded, unless  the  execution  of  it  is 
proved.  Durst ij  v  GasiHttvuy.  403 
Sec  Mortgage  6. 

Hixmxr.  KXPRESSIONS. 

See  Grant  30,  36,  ^y. 

BLANK  INDORSEMENT. 
See  Promissory  Note  1. 

BOXD. 

1.  The  court  will  not  so  construe   the 
recital  in  a  bond  as  to  defeat  its  ope 
ration  and  render  it  a  nullity.     .'.. 
cfifn  v  The  Mayor,  i/c.  41 

A  bond  given  by  one  partner  for  a 
simple  contract  debt  due  from  the 
partners  to  a  creditor,  and  accepted 
by  him,  is  by  operation  of  law  a  re- 
lease of  the  other  partner,  and  an  ex- 
tinction of  the  simple  contract  debt, 
at  kw  and  in  equity.  ll'ili- 
//  .  474- 

3.  Such  bond,  although  not  bind- 
ing on  the  partner  who  did  not  exe- 
cute it,  is  obligatory  on  the  partner 
who  did  execute  it-  Ib. 

See  Auctioneer  1. 

Judgment  2,  .">. 

Non  Est  FactumJ. 

Surety  1. 

Uncertainty  1. 

BOUNDARIES  OF  LAND. 
See  Hearsay  Evidence  1,  -1, 

BREACH. 
See  Covenant 

BRITISH  SUBJECTS. 

1.  No  fifiliffi  Mibject  could  hold  lands 
in  this  state  on  tlie  19th  of  November 
1794.  Owin^x  v  Nvr'juuod's  Lesser,  lo4 

Set  Confiscation. 

'  •<*  4. 

Mortgage  4,  5,  7. 

BRITISH  TREATY. 
See  Confiscation  3,  4,  6. 
—  Mortgage  5,  7- 

c. 

(  M  r.s  w  SURVF.YS  AND  CHANTS. 

#K  Grant  30,  33,  34,: 

— —  Location  of  LaJndb  8. 


u  nov 

1.  If  the  plaintiff  in  an  action  of  af- 
mripxit  files  an  account  in  court  i  on- 
taifiinythe  iteins  of  his  claim  against 
the  defendant,  he  is  precluded  from 
,'  into  evidence  to  establish  his 
claim  in  a  nuuiiur  different  from  tlr.it 
in  which  he  has  ,  I.  .  ti  .1  b\  his  account 
to  consider  the  defendant  his  debtor. 
J)e  >  /</•. 

See  Contract. 

Foreign  Laws. 

Joinder  of  Actions  1. 

CAUTION  \H>NI:Y. 

See  Composition  Money. 

CAVEAT. 
S>r  Grant  17. 

Certificate  of  Survey  It 

CAVEAT  EMPTOR. 

See  Warranty. 

rr.RTAiNn 

See  Ejectment  2'J. 

Verdict  4. 

CERTIFICATE. 
See  Acknowledgment  of  Deeds  5. 

Clerk  1. 

CERTIFICATE  OF  SURYI", 
1.  Where  a  certificate   of  resun 

liable  to  be  vacated  upon  a  raveaf, 
and  the  vacant  land  ii»«-lnd.v}  therein 
might  be  and  was  legally  granted  to 
another  person — Whether  or  not  a 
grunt  for  the  land  in  the  first  mention- 
ed certificate  will  puss  the  ! 
lid  in  annul  1 1  a/  I  41 

/tii /H  mini  tt  e!  n/.  I*.<u<tt  v  WarJitU,  161 

Fraud  4,  6,  7. 

Grant   15,  16,  1'J,  20,  21,  22,  24, 

41. 

Land  Office  10,  11. 

Parol  Evidence  3. 

— —    Relation. 

— —  Warrant  of  Kesurvcy  3. 

;  i  i  ( i  i  •  K  ' 

1.  A  judgment  by  confession  i;  an  ad- 
mission of  the  right  of  the  nominal 
plaintiff  to  recover  the  pcnaltv  of  the 
bond;  and  whether  the  judgment  i* 
in  t!,e  ri.^lit  of  th<-  plaintiff,  or  for  the 
use  of  another,  is  not  material,  and 
cannot  be  a  cause  of  revrsin^  the 
judgmeut.  M'Mtchen  v  The  Mayor. 
tfc.  41 


INDEX. 


517 


2.  Whether  or  not  a  trust  estate  is  an- 
swerable to  the  creditors  of  win!. /jut 
trust?  I/vllingsworl/i,  et  uz.  v  M'Dn- 
nuhl,  ft  at.  230 

See  Assumpsit  4. 

CHALLENGE. 

See  Criminal  Prosecution  6. 

CHANCERY. 

Sec  Court  of  Chancery. 

CLERK. 

Set.  Evidence  8,  17,  31,  45. 

Commission  and  Commissioners  3. 

COLLATERAL  CONDITION. 

See  Judgment  2,  3. 

COLLATERAL  QUESTIONS. 

See  Evidence  38,  87- 

Fraud  6. 

Verdict  6. 

COLLOQUIUM. 

See  Slander  7,  8. 

COMMISSION    AND    COMMISSION- 
ERS. 

1.  In  executing  a  commission  issued  to 
a  foreign  country  for  the  purpose   of 
taking  testimony,  notice  i.s  not  neces- 
sarjVbut  time  should  he.  given,    that 
the    opposite    party    might    exhibit 
cross  interrogatories.     Oicings  v  tfw- 
u-ood's  Lessee,  06 

2.  As  to  the  manner   of  striking   com- 
missioners and  issuing  commissions  to 
a  foreign  country  to  take  testin  ony. 
l)e  tfolfl-y  v  Terrier,  196 

o.  In  executing-  a  commission  to  take 
testimony,  it  is  not  necessary  that  tiie 
commissioners  should  appoint  a.  clerk. 
Beard  v  Ileide,  442 

4.  Depositions   returned  under  a  com- 
mission issued  to  Pennsylvania  to  take 
testimony  in  the  cause,  were  not  per- 
mitted by  the  general  court  to  lie  read 
in  evidence,  it  not  appearing    by  the 
return  of  the  commissioners  that  they 
had  given  any  notice,    or  that  proper 
notice    had   been   given.      Sorting's 
Lessee  v  Singery,  459 

5.  Depositions  similarly  taken  were  not 
permitted  to  be  read  in  evidence,  al- 
though offered  in  evidence  by  the  op- 
posite   party;    concurred  in   by   the 
court  of  appeals.     lb,  46'J 

See  Foreign  Laws  2. 

COMMON  LAW, 

Sec  Conveyance  3. 

-T—  Trust  and  Trustee  I. 


COMMON  RECOVERY. 

See  Feme  Covert  2. 

COMMON  WARRANT. 

1.  A  common  warrant  may  be  located 
on  any  uncultivated  land  in  the  coun- 
ty, to  the  surveyor  of  which  it  is  di- 
rected, if  no  person  has  acquired  a 
right  of  pre-emption  to  such  vacant 
land.  Hammond  et  al.  Lessee  v  Kvr- 
ris,  132 

See  Grant  40. 

COMPETENT  WITNESS. 

1.  Where  there  is  a  mortgage;,  with  co- 
venant bj  the  mortgagor  that  he  will 
pay  the  money,  and  he  assigns  his 
equity  of  redemption,  is  he  a  com- 
petent witness  for  the  assignee  to- 
prove  that  the  money  loaned  was  con- 
tinental money?  Worlhiiiirtun  v  Bicb- 
nell,  53 

Sec  Hearsay  Evidence  1. 

Witness  2. 

COMPOSITION  MONEY. 

1.  Aslothe  manner   of  applying   lanj 
warrants  to  the  payment  of  composi- 
tion money.     Iluiitnumd  et  al.  Leaver  o 
WarfieM,  l.itJ 

2.  The  jury  are  to  find  when   the  com- 
position money   was  paid   on  surveys 
of  land.  JL 

0.  Where  the  relation  of  a  grant  to  the 
certificate   of  survey  depends   upon 
the  time  when  the  composition  money- 
was  paid.     Hammond  et  al.  Lessee  » 
jV</m'«,  152 
IIi,i/nno)id  et  al.  Lessee  v  lVurfieldt  152 

See  Grant  41. 

CONDEMNATION. 

See  Attachment  i. 

CONDITIONAL  SALE« 

See  Freedom  1. 

— —  Manumission  3. 

CONFESSION. 

See  Executors  and  Administrators  & 

Judgment  2,  3. 

CONFIRMATION- 

See  Acts  2. 

Contract  11. 

CONFISCATION. 

1.  Lands  liable  to  confiscation  may  l>e 
granted  by  the  state  under  an  escheat 
warrant.     Gwings  v  Norwood's  Lessee, 

99 

2.  Tlic  state  by  its  commif.ioners  was 
in  posocision  of  all  British 


518 


i:\ 


.   -indrr 

»J¥.l  by  virtue   of  the  act  of  conlise.v 

tJu*.  ami  the  act  »o  appoint  conu'iis- 

Ib.    101 

&  >o  British  subject  could  hoUl   land 

w*  this  state  on  the  li>th  of  November, 

•line  w'.icn   the  trtaU  vn-ii 

.'•<i'i  was  m:uic.  /*. 

1  .mis  were  n*>rtgagcd   to  a 

£ri(i\/i  subject,  oil  failure  of  payim-nt 

tt"  the  mortgage   m«>n.-\,  a  complete 

Icy-'  'V.d  in  the  mortgagee 

liable  to  confiscation,   and  \\  us  vested 

itttlie  state  ur.dcr  the  acts  ofconfisca- 

iiihject  to.  the  right  of  redemp- 

tiun;  and   the    £riH?/i    treaty   c.u>nut 

operate   on    sueli    a   ca.se.       Uu 

jfurwood  1  05 

toward  r  J&tfA,  rt  «/.  Le*Kt%      2.~>«, 

'.  ("notffj 

5.  The  acts  of  confiscation  vested  tlie 
•risin  and  possession  of  all  lands  lia- 
ble- to  confiscation,  in  the  commission- 
ers on  behalf  of  the  state,  uud  dives- 
led  the  poi.--.es.  >i  on  of  all  oilier  pei^ons. 
llni  I  I  ~i 

confiseation  thcequlta. 
interests  of  Jfrt/wA^subjecta  in 
were  confiscated  without  (j^?« 
or  entry,  or  other  act  done, 
atxl  ahhough  such  ei(iiit:ir>li-  inttfcs'.^ 
vere  iwt  discovered  until  long  after 
tW  t  rt-Hty  of  peace.  fSmitfi^  et  al.  v 


i  «>N  rifiUOVS   VAC  \\CY- 
Set  \\  an-.int  of  HesurviA  4,5. 


5<-c  Escheat  1,2,  3,4,  5. 


CONSENT. 
See  Evidence  '^« 

CONSIDERATION. 
S«  Tmirt  of  Chancery  34. 

•         Evidence  74. 


&M  Acknowledgment  of  Deeds  I,  2,  .1, 
4,5. 

-  Acts  of  Assembly   I,  2,  3,  4,  5,  6. 
-    Contract  5. 

—  —   Con\»-\;*nee  },  2,3. 
'•  '  •     Covenant. 

—  —  (  -execution  1,  ~ 

-  I)c\i- 

-  linint  '^3,  24. 
"     •    Guaranty  1  - 

"    -    Indictment  1. 

-  -   Kcr.iud  1  . 

-  -  'I  •>  st:iinri!t:irr  System  1  . 

-  -  Tn:->t  ,ti>d  Tru-tec  I  . 
.  -    I 

• 


M' 

See  Court  of  Chnnoery  J,  2 
-  .Mortgage  I,*1. 

(  uvUM.KNXT. 
1.   A  will  to  take  cll'i-et  i-u  :i  t-iiii' 

cy,  has  no  effect  if  vlie  contingency 
ciui-s  not  happen  ort&keeHcct.  Sec 
V\  ILL  o,  awl 

v  M'Bonaidi  316 


». 


CONTHAt    I 

A  contmct  executed  i'»  1761, 
ing  to  convey  a  tract  of  land,  enforc- 
ed by   tUe   court  of  chancery  in  fa- 
vour of  the   li«-ii-  at  law,  on  bill  filed 
in  i*W.     Unffntr  v  J)icl>>'"i, 

If  ;»  contract,  is  in   writinjj   it  will  it- 
self show  where  it  is  to  be  executed; 
but   if  it  docs  not  appear  l>\  the  face 
of  i|,  the    presumption  is  that    ' 
be  executed  in  the   country  wherf   it 
was  made.      H  it  doi  s    ^\>\>-  .ir   that  it 
haj  .-»  view  to  be  executed  in  a  parti- 
cular country,  it  must  be  carried  into 
effect   pursuant  to   the    laws    ol 
country.     1)>  ,W/,-y  r  7Vt-ur, 

If  a  contract  is  by  parol,  the  party 
is  at  liberty  to  go  into  evidence  to. 
prove  the  inU-niion  of  the  parties  as 
to  where  it  was  to  lie  executed.  In. 

A  contract  made  in  a  foreign  coun- 
try must  be  governed  by  tin:  laws  of 
that  country,  and  no  act  now  lodgment 
of  the  debt  in  another  country  can 
change  the  original  na<ure  of  the 
debt.  Ib.  221 

It  is  a  general  principle,  which  ad- 
mits of  few  exci  p;ion>t  that  in  con- 
struing contracts  made  in  a  !<• 
country,  the  courts  are  governed  by 
the  Isx  li>  n  as  to  what  respects  the 
ice  of  the  contract;  that  is,  the 
rights  acquired,  and  the  ohl'iL. 
creat'-d  by  it  ;  and  the  remedy  or  mode 
of  enforcing  the  contract  is  to  be 
conformable  tu  the  laws  of  the  coun- 
Uy  where  the  action  is  instituted. 

///.  228 

Where  by  the  terms  of  a  contract  it 
is  to  be  executed  in  another  country, 
there  the  parties  to  it,  by  coiuiuon 
consent,  adopt  the  laws  of  that  coun- 
try us*  the  rule  of  decision.  Ib. 

Where  a  contrart  is  confra  bonu» 
mvr'-ft  as  for  the  pricv  of  prostitution, 
%ach  a  contract,  though  Icp.d  is.  s-n,.; 
countries,  would  not  be  cntbrceil  in 
thi»  state. 

A  contract  made  in  one  county 


INDEX. 


519 


«  view  to  the  execution  or  perfor- 
nuuice  of  jt  in  another  country,  is 
governed  in  all  things  both  as  to  its 
essence  and  the  mode  of  enforcing 
H,  bv  the  laws  of  the  latter  country. 

A. 

9.  If  a.  contract  is  made  in  this  state  be- 
tween foreigners,  and  the  debtor  dies 
in  a  foreign  country,  the  creditor  m.iy 
recover  in  this  state  according  to  our 
laws.  fb< 

10.  The  court  of  chancery  will  not  en- 
fo;  ce  a  specific  performance  of  a  spe- 
culating contract  for  continental  mo- 
ney,    Hupklivi  v  Stump  el  ul.        otJl 

11.  If  a  mortgagor  of  slaves  sells  thorn 
for  a  full  consideration,  and  after  his 
discharge    under  an    insolvent   law, 
purchases  them   of   the   mortgagee, 
his  subsequent  ac'.s  in  perfecting  his 
title  to  the  slaves,    will  enure   in  law 
to  confirm  and  not  to  defeat  his  con- 
tract with  the  vendee,     Dorsey  v  Gi;s- 
iHLuiuy,  4 '  1 

12.  As  to  a  variance  between  a  descrip- 
tion   of  land  contracted  to  be  sold, 
and   conveyed,   and  that   used  in    a 
grant  of  the    land.     See    COURT  OF 
C  :IA \<-  ic  ar  33^  and      Ilamm&tid  v  Saji- 
phigton,  446 

J.7,.  There  being  no  designation  of  part 
of  a  tract  of  land,  contracted  by  a 
bond  of  conveyance  to  be  conveyed, 
nor  any  description  whereby  it  can 
be  identified,  parol  evidence  is  not 
admissible  to  show  that  it  was  intend- 
ed by  the  parties  to  be  laid  off  in  a 
particular  manner,  and  the  bond  is 
void  for  uncertainty,  except  on  the 
principle  of  election.  JJuntt  and 
Parks  v  Gift  ct  uL  498 

Srt  Covenant. 

Creditor  1. 

Equitable  Estate  2, 

French  Laws. 

— — .  Parol  Agreement. 

CONVEYANCE. 

3.  The  same  words,  which  in  a  devise 
of  land  would  create  an  estate  tail, 
will  in  a  conveyance  of  a  freehold  es- 
tate create  a  fee  tail.  Hullingswurth 
et  HJC.  v  Mf  Donald  ef  ul.  230 

,?.  In  a  conveyance  of  a  freehold  or  IE- 
gal  estate,  technical  words  an-,  ap- 
propriated by  law  to  the  creation  or 
limitation  of  particular  estates;  for 
instance,  to  create  an  estate  in  fee, 
the  limitation  must  be  to  J  S,  and  his 
heirs,  and  to  create  a  fee  tail,  to  J  S, 
and  the  heirs  of  his  body.  The  words 
dt  &irjn>rt>  y.'u>  arc  not  indispensably* 
iaur) ,  but  may  be  supplied.  t»y 


words  equipollent  or  tantamount, 
plainly  designating  or  poi-itiug  out 
the  body  from  whom  the  iicirs  inhe- 
ritable are  to  issue  or  descend.  ft>, 
o.  Whether  or  not  the  court  is  ut  iiber- 
ty,  in  expounding  a  deed  of  convey- 
ance creating  or  limiting  a  use  or 
trust  at  common  law,  and  not  united 
to  the  possession  by  the  statute  of 
uses,  to  reject  the  rules  established 
by  the  common  law  in  the  construc- 
tion of  a  conveyance  of  a  frcehoiii 
estate,  and  to  give  an  exposili<,> 
cording  to  the.  invention  of  the  p:.r~ 
ties  as  in  a  will'  L'1:, 

4.  A  deed  of  conveyance,  executed  by 
a    tenant    in    tail,    and    not   enrolled 
within  the   time    prescribed   by   law, 
but  enrolled  thereafter,  and  after  the 
djulh   of  the   tenant  in   tail,  under  a. 
decree   of  the  court  of  chancery  for 
that  purpose,  cannot  operate  against 
the  issue  in  tail.      Janes  ct  ul.  vJout?, 

281 

5.  An  estate  tail  is  not  within  the  pro- 
visions  of  the  act   of  1785,  ck.  72,  t. 

•    11,  authorising  the  chancellor  to  de- 
cree the  recording  of  certain  deerti- 

«L 

6.  If  a  grantor  of  land,  residing  in  -x. 
particular  county,   and  having  a  tem- 
porary residence  in    another   county. 
in  neither  of  which  counties  does  the 
land  lie,  acknowledges  the    deed  hi 
the  county  in  which   his  temporary 
residence   is,  such   deed  is   not  gooi 
and  valid  in    law  to  pass  and  transfer 
the     grantor's    interest    in   the,    larui. 
I  fall  v  Gittings's  Letscc^  SS5 

7.  A  temporary  residence  in  any  county 
of  the  state,    is  not  sufficient  to  en- 
able a  grantor,  being  a  citizen  of  tl»e 
state,  to  acknowledge  a  deed,  durir.^ 
such  temporary  residence,   for  L'.i.d 
lyir.g    in    any    other    county    of    tins 
state.  il).  391. 

8.  The  wnHs  "Irgatly  nutlurrhed  and  as- 
,^'iv/c.y,"  in  a  certificate  of  the  clerk  of 
a  county  court  to  a  deed  of  convey- 
ance acknowledged    before   two  jns 
tices  of  the  peace  of  that  county,  ISA 
substantial  compliance   with    the   di- 
rections, and  within    the  meaning   o'f 
the  act  of  Nsoentfier  1766,  ck.  14,  aixl 
are  word*  of  the  same  import  as  **(!«- 
iy  ammissimed  and  fnoorn."  fb, 

9.  As  to  a  variance  between    a  descrip- 
tion of  land  contr.*rted  to  hesoMsiid 
conveyed,    and   that  mentioned    in    » 
grunt    of    the    laud,  see    COLUT    **r 
di  ISTKBT  3;>,  and 

Hllinnuni'l  !•  $;i/j/);n>;tiin,  4-46 

10.  Where   the  court  of  chancery,   in. 


520 


ixnr.x 


decreed  a 
'>y  the  par- 

!fee 

<'DI  ii  r  ••  ind 

*  .'.     487 

__  i;  .1.  mi  •»!-.  !  -  ' 

,          '  i,  Cl,  44. 

_  Dewripuoa  J. 

.  _  i  ',  <<. 

-  !  ',57. 

-  IVmc  Covert  I,  2,  J. 

-  Inspv'v.tnus  I  . 

-  l.ocatMii  of  I  .amis  4,  14. 

-  -  Mo.-tir... 

-  Parol  Agreement  2- 

.  —  '  'Hi  .•;. 

-  Propriety.-. 

-  State  1  . 

rni'Y. 
Sec  Authentication  1  . 

-  Kvideiice  :,.;,  -15,  5?,  73. 

—  —    V.i  .:  v   Public  I  . 

—  Oldce  Copy. 

i  o  :'<>•;  \  : 

other  or  not  n   corporation    can 
•ii-  to  and  prosecute  an  action  un- 

•iey  L-^ally  uuiii- 

by  letter  of  attorney  tinder  their  cor- 

por.iu   -.  il  '  (Jit  ere.    The  warrant   of 

attn:  >iot  be    spread   o;i  tlie 

.:  J.     J/'JA  Jte-'i  o  Tlit  MH-JIH;  ¥<•• 

41 

COSTS. 

See  Crv.'rt  of  Appeab  J. 
••         Dower  3,  4. 

IT    HANK   NOTE. 

ililipsil  J. 


\  !  BRLOC'ATI 

of  Lands  3,  5,  16. 


USK  AST)    DISTANCE. 

>,.»/. 
—  —  Li.ciUon  of  Lands  8 

UT- 

^^  !'  rt. 

-   !  '-,  G. 

- 

LPPEALS. 

.  ')<irt  raiiMOt  tn 

«>f  il.  ry  IK-- 

i  s'ipijort  of  tli<: 
.'/rtourt. 

41 

-.  A  il  ..  rev  ot  '  ilic   cuurt  of  cbanccry 


in  favour  of  the  r.->ntj>I,iiu'i'it,  buttln*. 

. 

tlic  :ip;)-,-al  of  tlie  dtfciulant,rt\ 
as  to  costs   and   a  il>  1    di- 

r<-rtiii)f  tint    tin-  :4|ip«.-lli-i-    should    ro- 
Hi  both  courts.     IL'ff- 
nrr  v  I)i,  '•  46 

H',.i-t!,i,iKti,n  r  liifl-'itU,  5* 

Ilojf-ni.i        '  4«6 

! ,  - 
•          1'roccdendo  j,  J. 

COURT  OF  CHANCERY. 

1.  A  bond  for  the  convi^.-xi! 

of  laud,  executed   in    176',   i  i. 
by  t!ie  court  of  chanc.cn  in  favour  of 
•K  ir  at  hivr  of  the   obligee,    on   a 
bill  tili-d  in    I71>i.      / 

40 

2.  W  i;  •••inrf  the  cqnita- 
bK-  iiUi-rcst  in  land,  is  in 

yi-t    if  his  equitable    interest   is   not 
kii  )-A'n,  it  will  not  prrvy;!, 
t-d,  over  tlic  1«  .  .icing 

.•iitable    ii,' 

5"> 

;(    .\  i  ci  cu  '  '*,  of  iv al 

and   pel-villa!  propi-:-    .  .re  the 

payment  of  a  su:u  in  the  tfu-n  ciinvnt 
money,  and  it  \ 

between  tlu-m  that  the   personal   pro- 
perty :;houU  !)•  .  <m   A',  en 
do;-sinij  on  the  iiiort^:«A'e  that  it 
specie  debt.     A  •   curm-vcd 
hib   equity  of  redt-nijiiin'i   in  t1, 

to  (',  wlio,   on  the 
tions  of  B,   of  the   sum   due  < 
mortj-'agv,  and  th;.t  it   should    not   he 
released  unless  C  executed  to  1. 
bond  for  that  sum,  did  nccoiilin 
cctite  such  bond;  or.  -  lit   at 

la\v  \v:»s  brought,  and  judgment   ren- 
deivd  thereon.     On  a  bill  til'-i! 
an    injunction    was    obtained    t 
pl-oe  The   auditor 

vas  ordered   to   Mate   the    nn.r 
d<  Li  in  continental  nioney,    reducing 
it  ii.to  specie  at  J  for  1,  with  i;r 
and  credit    the    pawnrnts   made;  and 
on  »  •  .i.-nt  the  debt  appeared 

to  be  overpaid.  Drcrctd,  th.it  the  in- 
junction I>e  perpetual,  tt'ort/tinqfr-n 
el  al  v  Kickncll,  58 

4.    A  contract  for  tile  purchase  of  land, 
bnnn  fide  made    for  a  vahuble   consi- 

'erest 

in  the  vendee    from  the    time    irf  the 
'ition   of  the  contract,    a  If  hough 
the   money    is  not  paid    at.  that  time. 
A\  hen  the  money  is  p:*id  ar,:.->r. : 
the  terms  of  the  contract,  the  v 

.•itled  to  a  •  A  jicf^- 

iu:nt  obtained   by  a  third  person  a- 


INDEX. 


g-ainst  the  vendor,  rnesne  the  making 
the  contract  and  the  payment  of  the 
money,  cannot  deft  :tt  the  equitable 
interest  tints  acquired,  nor  is  it  a  iirn 
on  the  land  to  affect  the  right  of  sneh 
ct'*tui  yuc  Ifiul.  Ilunii^on  v  l!,I,lcn,  M 
5r  Where  A,  in  consideration  of  a  ifebt 
due  from  him  to  II,  assigns  to  him 
(not  tinder  the  act  of  176j,  ch.  23,  *. 
9,  10,)  the  howl  of  C,  and  ('  is  or  be- 
comes insolvent — On  a  hill  hied  hy  1J 
against  A,  to  compel  payment  of  the 
bond  so  assigned — Dtc.rcnl,  that  the 
court  of  chancery  had  no  jurisdiction; 
that  if  the  assignment  was  an  extin- 
guishment of  the  original  debt,  the 
complainant  was  not  entitled  to  relief 
either  at  law  or  in  equity;  and  if  the 
assignment  was  not  an  extinguish- 
ment of  the  original  debt,  the  com- 
plainant had  his  remedy  at  law  on 
the  original  contract,  there  being  no 
circumstances  disclosed  in  the  bill  to 
make  it  necessary  for  him  to  resort  to 
a  court  of  equity.  Girver  v  Christie 
&  Jay,  67 

6.  A  parol  contract  between  a  father-in- 
law  and  son-in-law,  that  the  father-in- 
law    would  give   a  real    estate    to  his 
grandson,  in  consideration  of  the  son- 
in-law  paying  one  half  of  the  value  of 
the  land — Not  enforced,    though  pos- 
session was  held    hy   til;    son-in-law, 
and   a  part   of  the    purchase   money 
paid.     IVlngale  r  Dail,  76 

7.  A  specific  performance  of  a  bond  for 
the  conveying  of  lands,    executed  in 
1777,  decreed,  on  bill  filed  in  1797,  al- 
though   strongly    contested    on   the 
ground  that  the  bond  was   never  exe- 
cuted, or  if  executed,  that  it  was  ob 
tained    by    fraud.     Suuiiders   et  ux.  v 
Simpson  cf.  itx.  81 

8.  A  decree  of  the  chancellor  is  subject 
to  his   control  only  upon   a  bill  of  re- 
view, or  a  bill  in  the    nature  of  a  bill 
of  review.      HoUingsvxfth    et   ux.  v 
M'/),->ntil,tet  al.  230 

9.  A  hill  of  review  lies  after  the  decree 
is  signed  and  enrolled,  Ib. 

10.  A   bill  in  the  nature  of  a  bill  of  re- 
view lies  after  the  decree  is  made,  but 
before  enrolment,  Ib. 

11.  A  decree  must  be  considered  as  en- 
rolled after  it  is  signed   hy  the  chan- 
cellor,  and  filed  by  the  register,     Ib. 

12.  A  bill  of  review    will  only  lie   for 
two  causes — Krror  apparent  on   the 
decree,  or  for  some,  matter  relevant, 
existing  at  the  time  of  the  decree,  and 
discovered  since,  Ib. 

13.  A  bill  of  review  cannot  be  support- 
ed for  matter  existing  at  the   time    of 
the  decree,  and  discovered  since,  with- 

\OL.  ii.  66 


out  affidavit  of  such,  and  the  exis- 
tence of  it  at  the  time  of  the  decree, 
to  lay  the  foundation  for  applying  to 
the  chancellor  for  his  leave  to  hie  a  bill 
of  review,  and  obtaining  such  leave,  fb. 

14.  On  petition  suggesting  proper  mut- 
ter,   supported  by  affidavit,    as  the 
ground  for  filing  a  bill  of  review,  the 
chancellor  exercises  his  judgment  on 
the  propriety  of  interfering   or  med- 
dling with    his  decree,    for  the  cause 
disclosed,  and   grants   or  rejects  the 
application  accordingly,  Ib. 

15.  A  and  B  entered  into  a  bond  to  C, 
on  which  separate  suits  were  brought, 
and   judgments  recovered.     B  pays 
both  judgments,  and,  as  surety  there- 
in, obtains  an  assignment  of  the  judg- 
ment against  A,  from  the  attorney  of 
C,  and  issued  an  execution  in  his  owrt 
name,    as  assignee   of  C,   against   A, 
on  the  judgment  against  him,  for  the 
whole  sum  of  money  recovered.     A 
filed  a  bill  in   the  court  of  chancery 
against  B,  charging  that  the  bond  was 
for   a  joint  debt   due   from   both  of 
them;  that  he   had  paid   nearly  one 
half  of  the  debt,  and  that  B  was  lia- 
ble  for  the  other  half—Also,   that  B 
was  indebted  to  him  in-  &  suia  of  mo- 
ney recovered  by  a  decree  in  chance- 
ry,  which  he  refused   to  discount- 
prayer  for  general  relief,    and  for  an 
injunction  to  stay  the  execution.     In- 
junction   granted.     B  by  his  answer 
denied  that  the  debt  was  a  joint  o«e; 
that  he  was  the   surety  of  A  in   the 
bond.     He  admitted  the-  decree   ob. 
tained,  but  that  he  had  appealed  there- 
from,  which  appeal    was    depending 
and  undetermined.     Decreed*  that  B 
was  a  co-principal  with  A  in  the  bond 
to  Cr  on  the  ground  that  he  received 
in  specifics,  as  his  .share   of  the   per- 
sonal estate  of  hi*  father,  (for  whose 
debt  the  bond  was  given,)  as  a  consi- 
deration for  his  becoming  a  principal 
in  the  bond  with  A.   That  A  be  charg- 
ed with   one   half  of  the   amount   of 
the  bond,  with  interest,  and  credited 
with  the  payments  by  him  made,  and 
the  amount  of  the  decree  since   finally 
made  in  his  favour,  and  be  also  charg- 
ed with  B's  distributive   share   of  his 
father's  estate,  with  interest.  By  which 
a  balance  was  due  from  A  to  B.     J)e- 
rrcfd  also,  that  the    injunction  be  dis- 
solved,   and  tliat   B  be   permitted   to 
t»ke  out  execution  at  law  in  the  name 
of  '.',  for  the  use  of  B,  against  A,  oil 
the  judgment  at  law,   for  the  said  ba- 
lance, with  interest,   &c.  and  costs  at 
law.     Norwood  v  Norwood,  238 

16.  An  answer  tp  a  bill  in  chancery  is 


332 


LVDEX. 


hot  to  be  considered  a»  standing  pood 
il'  it  be  contrary  to  the  testimony  ot 
at  least  two  witnesses,  <>r  of  (•• 

and    Mrong    equitable    circum- 
•tar.i 

•  ip  ct  ul. 

17.  On  a  bill  ill  the  court  of  chancery  to 
be  !•  AJnst  the  verdict   of  a 
jury,  and  judgment  therein  rendered 
at  law,  it  appeared  th:it  the  appliculi- 
on  in  effect  was,  that   the  chancellor 
act  a*  a  tribunal  of  appeal  from   the 
verdict  of  a  jury.     There  was 

no  surprise  on  »he  complainant  whilst 
defendant  at  law;  no  discovery  of 
testimony  since  the  trial  at  law,  and 
there  was  no  sufficient  proof  of 
Fruud.  Derrntl,  that  the  facts  set 
forth  by  the  complainant,  in  his  bill 
of  complaint,  were  not  sufficient  to 
warrant  the  court  of  chancery  to  in- 
terpose and  grant  the  relief  prayed. 

*179 

18.  The  court  of  chancery   cannot  de- 
cree that  a  deed  of  conveyance,  exe- 
cuted by  a  tenant  in  tail,    may   be  re- 
corded after  the  expiration  of  the  time 
limited   by  law    for  the    recording1  of 
deeds — an  estate  tail  not  being  ' 

the  provisions  of  the  act  of  1785,  r/i. 
72,  a.  !  I.  Junes  ft  al.  r  Jones,  281 

19.  The  act  of  1797,   c/i.  114,  a.  4,  di- 
recting1 "that  if  a  cause  in  the  court 
of  chancery  is  set  down  regularly  for 
hearing;  or  submitted  to  the  chancel- 
lor, and  one  of  the  parties  dies  there- 
after, and  before  a  decree  passed,  the 
cause  shall  not  abate,    and  the    chan- 
cellor   may   decree  as  if  such    party 
were  alive,"    cannot  take  effect   in    a 
cause  where  there  might  be  a  decree 
for  a  reconveyance  of  land  to  the  par- 
ty dead,   on  paying1  or  bringing  mo- 
ney  into  court.     Brngden  v  J/' 
/.Vr.  L*c.  285 

20.  A   bill   in   the   court  of  chancery, 
(which  was  afterwards,  on  the  death 
of  \V,  thf:  complainant,  revived  in  the 
name   of  his  executor,    legatees  and 
devisees,)    charged  that  B,    (the    de- 
fendant and  uncle  of  \V,)   committed 
a  fraud  in  procuring   Ws  execution 
and    acknowledgment   of  deeds  con- 
veying his  whole  estate,  real  and  per- 

'    ftonai,  variant  from  thos-;  In-  had 
!     to  cx'-cnte;  that    the  deeds  u 
tended  only  as  a  security   for  .. 
due  from  W  to  H,  and  not 
conveyances    in   fee   simple — Prayer 
for  a  discovery,  and  permission 
deem  the   property    intended    to   be 
•gaged,   on  paying  the  debt,    and 
for  a  reconveyance,  und  other  relief. 


Iff!'!,  without  deciding  whether  of 
not  there  was  fraud  in  obtaining  the 
dci  ds,  that  the  deeds  are  to  be  • 

Mi-d  by  a  weak  young- man, 
con-nun-,  ility   to   protect 

hi-,  property,    or  to    niav.uge    hi>  ov.  n 
concerns,    and  therefore    resol\ingtw 
place  himself  im<!<  r  t!u- gtiidan- 
protection  of  an  :di<  ctioir.ite  relation. 
That   it    could    not    be    imagined    ho 
ni'-ant  to  convey  every  part  of'l. 
pK-    property    tor   the   bcnciit    of  his 
kinsman  only,    and   to   be    absolute}} 
dependent   on    him    for   suhsi-- 
The  '  (instruction    is, 

that  the  deeds  \vtre  intended  to  se- 
cure to  I?  a  debt,  which  was  trifling 
in  comparison  of  the  value  of  the 
property  conveyed.  Here  then  w»» 
.Irir.i;- trust,  or  here  there  wa» 
an  equity  of  rcdunption,  or  here  wag 
a  silly  intemperate  young  man,  who 
really  did  not  know  what  he  was  about, 
and  who  therefore  ought  to  !i.. . 
protection  of  a  tribunal,  who»e  pecu- 
liar duty  it  i.s  to  watcii  over  i 
lunatics,  madmen  and  fouls.  If  \V 
.  of  the  purport 
of  the  deeds,  Mt  it  may 
it  v.-ys  sufficient  toy  15  to  have  an  ample 
security  for  his  deot,  and  to  - 
his  nephew  from  all  imposition  which 
might  be  attempted  by  others.  1k- 
',  that  on  payment  to  H,  on  or 
before,  Etc.  of  the  sum  of  money  ex- 
pressed as  the  conMderation  in  the 
bill  of  sale,  with  inte: •>  lioultl 

convey,  fcc.  to  the  executor  complain- 
ant, all  the  personal  property,  &.c. 
And  on  pa\nieat  to  B,  on  or  before, 
&.c.  of  the  sum  of  money  cxp: 
as  the  consideration  of  the  deed  ot* 
ccnve\ance,  with  interest,  &c.  H 

lit  convey,  Stc.  unto  the  dt 
complainant^,  and  their  heirs,  accord- 
ing to  the  will  of  W,  the  land  which 
i>y  W  to  R,  J;c.  Bnt 
if  the  complainants  should  fail  to  niak-r 
pavments,  f^c.  there  should  be  s-»ld. 
for  the  payment  to  B  of  the  said  two 
sums  of  money,  with  intere-t,  &.C.  so 
much  of  the  per.-onal  property  and 
land  as  should  be  ,  &.C. 

I'.x'r.  i'c.         291 

',\.  I'ravid  is  not  to  be  considered  as  a 
single  fact,  but  a  conclusion  to  b« 
drawn  from  all  the  circumstances  of 
th-  case.  H.  'X)'2 

22.  The  relief  which   may    have    been 
obtained    by  a  complainant    who  li:<s 
died,  nriy  be  granted  to  his  repix-sen 
tatives  reviving  the  suit.  Jf>. 

23.  A  representative  instituting   an  ori 


INDEX. 


523 


jj'mnl  suit  may  have  the  same  relief 
winch  would  have  been  granted  to 
his  ancestor,  devisor,  testator,  &.c.  Ib. 

24.  A  K  being- indebted,  as  deputy  she- 
rift'  and  deputy    collector,    to    It   A, 
suits   were  brought   on  his   bonds   as 
such,  and  judgments  obtained  there- 
on.     A  few   days  before   the  judg- 
ments were  obtained,  A  R  conveyed 
the  whole  of  his   real  and    personal 
f  slate  to  A  J  and  U  H,  who  were  sure- 
ties for  A  H  in  the  bonds  before  men- 
tioned.    K   A  Hied  his   bill  against  A 
R,  A  J  and  U  U,  charging  that  the  con- 
veyance   was  executed   fraudulently, 
and  with  intent  to  deceive  and  injure 
him,  and  though  apparently  for  a  mo- 
ney consideration,    was  in  truth  exe- 
cuted to  guarantee  and  indemnify  4 
J  and  RJB,  as  sureties  in  the   bonds; 
that  A  K  retains  possession  of  the  pro- 
perty, and  has  sold  a  part  thereof  for 
his  own  benefit.      Prayer  for  a  disclo- 
sure of  the  trusts  and  vacation  of  the 
deed,  and  for  general  relief.     A  J,  in 
his  answer,   stated    that  A  R  was   in- 
debted to   him  for  money  paid  as  his 
surety  to  other  persons,   and  also  in- 
debted to  him  on  open  account,    and 
for  money  lent.      Held,    that   the  real 
and  personal   property,  and  increase, 
if  any,  remaining   in  the    hands   of  A 
K,  A  J  and  U  H,  or   any  of  them,    be 
sold  for  the  purpose  of  paying,  in  the 
first  place,  the  sum  of  money   due  to 
K  A.    .rlinoKS  v  Robinson  tt  al.         320 

25.  Where  a  bill  had  been  filed   in  the 
court  of  chancery,  under   which  tes- 
timony was  taken  and  returned,   and 
the  bil!  afterwards  dismissed   by   the 
complainant,     who    filed  a   new   bill 
against  the  same  defendants,  to  obtain 
the  same  relief  for  which  the   former 
bill  was  filed — Held,   (on  the  petition 
of  the  defendants,)  that  the  testimo- 
ny so  taken  in  the  former  suit  be  re- 
ceived and   read  in  evidence   in  the 
new  suit.      Hopkins  v  Stump  ct  al. 

301 

26.  The  court  of  chancery  will  not  en- 
force a  speculating  contract  for  conti- 
nental money.  Ib.  304 

27.  The  answer  of  a  defendant  to  a  bill 
in  the  court  of  chancery    will  prevail 
unless   refuted    by  the  testimony  of 
two  witnesses,  or  of  one  witness  with 
equitable  circumstances.  Ib. 

28.  If  interrogatories  stated  in  a  bill  are 
not  answered,  the  complainant  has  a 
right  to  except  to  the  answer,    and  if 
the  interrogatories    are    proper,    the 
defendant   will  he  compelled   to   an- 

plainly,  fully  and  explicitly,    if 


then  any  material  matter  charged  in 
the  bill  has  been  neither  denied  nor 
admitted  by  the  answw,  it  stands  on 
hearing  of  the  cause  for  nought.  Ib, 

29.  If  A  has   purchased   land    from   D, 
and  paid  for  it,    without  receiving  a 
conveyance,  or  if  B  holds  in  trust  foi* 
A,  in  cither  case  A  has  an  interest  lia- 
ble to  be  taken  and  sold  on  -A.  fieri  fa- 
cias, and  the  purchaser   is  entitled  to 
the  aid  of  the  court  of  chancery  to 
obtain  the  legal  title.  Ib, 

30.  But  if  A  has   only   contracted  and 
given  his  bond    for  the  purchase  mo- 
ney of  a  tract   of  land,  and  received 
jn    return    a  bond  of  conveyance — 
Has  A  such  an  equitable  interest  as  ia 
liable  to  be  sold  on  *  fieri  facias  so  us 
to  place  the  purchaser  in  the  room  of 
A?  Ib. 

31 .  W  D  becoming  an  insolvent  debtor, 
his  real  estate  was  sold  by  his  trustee, 
and  purchased  by  C  D,  to  whom  a 
deed  was  executed.     C  D,  in  making 
the  purchase,  acted  professedly  as  a 
friend  to  W  D,  so  far  that  if  he  could 
procure  the  purchase  money  within  H 
certain  time,  he  was  to  have  the  be- 
nefit of  the  purchase;  but  as  he  could 
not  raise  th;;  money,  it  became  neces- 
sary  to  sell  a  part  of  the  premises  to 
reimburse   C  U— which   part  W  D, 
and  M  his  wife,  were  desirous  to  pre- 
serve to  themselves,  and  were  anxious 
to  procure  a  friend  to  become  the 
purchaser  for  and  on  behalf  of  M  the 
wife,  and  as  a  trustee  for  her.   Which 
intention  was,  previous  to  the  sale, 
made  known  to  R  W,  who  approved, 
and  it  was  agreed  that  J  S,  (who  con- 
sented,)  should  be  the  nominal  pur- 
chaser,   and  U  W  was  to  become  his 
surety  for  the  payment  of  the  pur- 
chase money.     J  S   became  the  pur- 
chaser, and  it  was  known  and  under- 
stood at  the  time,  that  he  purchased 
for  M,  the  wife  of  W  U.  In  the  bond 
fpr  the  purchase  money  R  W  became 
surety  for  J  S,  and  possession  of  th» 
premises  had   always  been  in  VV   D, 
\vho  procuring  a  part  of  the  purchase 
money,    applied  to  R  W  to  obtain  a 
bond  of  conveyance  from  C  D  to  M 
the  wife,  for  the  property,  when  he 
was  informed  by  R  W  that  he  had  got 
a  bond  to  himself,  as  J  S  had  given  it 
all  up  to  him,  and  that  W  D  had  no- 
thing  to  do  with  it.     J  S  had  been  in- 
duced, in  order  to  secure  R  W,  to  di- 
rect C  I)  to  give  a  bond  of  convey, 
ance  to  H  W,  who  assured  J  S  that 
no  advantage  should  be  taken  of  W 
Pj  and  that  when  he  paid  the  pur- 


INDIA 


chnse  money,  a  deed  should  he  exe- 
cuted to  his  wife  M.      The  pi* 
won  i    I)  to  K  \V,  who 

brought  an  ejectment  against  NV  1). 
Tin-  uiiiuiint  of  pnncip.d  and  interest 
of  the  purcht.se  mm,  ider^'l 

t>y  \V  1)  to  II  W,  and  a  deed  denvind- 
v  Inch  he  refused.  W  1).  and  M 
vifc,  tiled  their  bill  against  U  \V, 
to  he  quieted  iit  their  poss.-ssion  of 
the  promises,  Hnd  to  compel  a  con- 
veyance from  him  to  M  the  wit- — 
DtcretiL,  that  R  \\  coiuey  the  Kind  ia 
question  to  \V  D,  and  M  liis  wife,  in 
fee  simple,  and  tlut  an  account  he 
Stated,  Stc.  and  the  balance  due  he 
paid  at  tlie  time  ii  \V  shall  cou\\-v 
the  land.  MB.  r  It'a/?' . 

>\\\  in  chancery,  with  all  the  pro- 
ceedings and  tlje  decree  thereon,  can- 
not be  read  in  evidence  in  a  case  be- 
tween different  parties  from  those 
named  in  the  proceedings.  Doney  v 
ii'uy,  409 

33.  N  II  contracted  with,  and  for  a  va- 
luable   consideration    conveyed   to  J 
S,  by  metes  and  bounds,  H(J(, 
part  ot'  a  tract  of  Ian  .  lying 

jm-J  being,  in  the  state  of  Kentitfki/, 
in  the  county  of  Bourhon,  and  n/i  "i* 
riviin  branch  of  Licking. "  A  grant  of 
the  land  described  it  as  "lying  and 
beinj  in  the  county  of  Bwrtton,  on 
fi'  uniin  launch  of  Licking,  in  the 
State  of  /".y.'/u'a."  After  the  grant 
of  the  land,  a  new  state,  by  the  name 
of  Kentucky,  was  formed  fVom  /"<.•- 
gitiia,  and  the  county  of  Rnurbon  be- 
came a  part  of  Ktntucku,  winch  c"un- 
ty  was  afterwards  divided,  and  two 
Hew  counties  erected,  called  Clarke 
and  Alison  counties,  and  the  hind 
now  lie-  in  those  t\TO  counties.  J  S 
filed  his  bill  in  chancery  to  have  the 
contract  vacated,  and  the  coti 
tion  money  repaid  to  him,  &.c.  De- 
',  that  his  bill  be  dismissed. 
Hammond  r  Saf>[>h!^to:i,  '  446 

31.  A  II  hcing  entitled  to  a  lot  of  ground, 
but  ignorant  of  his  right,  was  induced, 
as  he  alleged,  by  the  fraud  and  im- 
position of  the  ugvnt  of  P,  U,  in  1791, 
to  execute  a  conveyance  to  B  B  for 
tin-  lot  on  a  am*ll  consideration,  lie 
filed  hi*  bill  jn  chancery  in  1798,  to 
have  the  conveyance  vacated,  &c. 
The  answers  of  1J  H's  r-.-pr 
and  the  agent,  denied  all  fraud,  &c. 
jfecrettf,  that  as  it  do6«  nut  ap|>«  urthat 
»  fmud  was  perpetrated,  or  if  it  w:is, 
that  li  II  W»H  a  contriver  or  privy  to, 
a-tuker  of  it;  as  the  complainant 
suffered  many  \cara  to  cl*p»«  before 


he  filed  his  hill;  as  the  property 
since     been     greatly     improvi . 
changed,  and  hath  devolved  on  i< 
reprecentatives;  a^the  argunu-nt  from 
conveiiiei: 

flii'jnce,  the  eomplaiinnt  is    not   enti- 
tled to  recover.     Hill  dismissed.     // 
,,iil'n,<  r   Hall,  rial.  -114 

.35.    TrandlH-'.1-  \  'is  tenants 

in    common,    under   the  act  to  duvet 
UN,  wi'li  s  s.  i.fand  in,  (among 
ot!ier>, )  of  a  lot  of  ground,  eon" 
separately   with  <i  K,  an  i 
com  ey  to  biot  all  Iheir  interests  there* 
in,  <c.i  (hi    pa\  ment  to  eaeii  oft 
$300;  and  the  n.  i,  po<- 

;    to   (jr 

K,  who  After  the  death  of  i  an  I  It  F, 
filed  a  bill  in  chancery  against  ">  ^, 
she  being  their  heir  at  law,  for  a  sp--- 
cih'c  performance  of  the  contract.  J> 
JS  by  her  answer,  alleged  that  both  T 
and  B  I"  were  in  Ijuiji'i  of  intempcr- 
anci*,  and  wer-.-  alni':  I,  in  a 

state   of   intoxication.      That   the   lot, 
was  contracted  to  be  sold  by  them 
when    in   a    state    "t 
wh'-n    they    were   incapuole    ot 
acting  business,  at  a 
low  its  value,  8iC. — l)r.T-:i,   t!i.      -    -> 
convey  to  (.i  Iv   one   undivided   third 
part  of  the  lot  of  ground;  hut  as  to  ihe 
contract  of  B  F,   on   account   of  the 
sat  i -factory  proof  of  hi-,  imbecility,  it 
ought  not  to  be  enforced;  and  that  G 
R  deliver  to,  or  pi-runt,  >  ^  to   take 
or  enjoy  f.vo  unditided  third  j>. 
the   lot  of  ground,    without   her    re- 
funding the  consideration  pJd  l>v  him 
to  B  F.    lit  In  r/i,  421 

36.  Whether  or  not  the  answer  of  one 
of  the  defendants  to  a  l»iil  in  ri 

ry,  is  evidence  ihcr  defen- 

dant'   ll'U/ii.  'it,  474 

37.  A  bond  given  by  one  partner  fora 
simple  contract   debt   due    from   the 
partners  to   a  credit  ,  epted 
by  him,  is,  by  operation  of  law,   a  ve- 
K-rxse  of  the  other  partner,  and  an  ex- 
tinction of  the   simple  contract    debt, 
at  law  and  in  equity.  ///. 

38.  Ignorance  ot  •  ••>cc-n- 

sequencc  -.  re 'H !» in};    tvoin  a  ei editor's 

;>ting  the  hond  ot  one  of  the  part- 
ners   for  a   simple  contract   dt-l>t   chic 
from  the    partm  rshij),  cannot    . 
or  form  a  ground  for  relief  in  equity. 

59.  Such  a  bond  although  not  bind- 

ing  on  the  partner  w  ho  did  not  exe- 
cute it,  is  obligatory  on  the  partner 
who  did  execute  it.  Jb. 

40    Wiicrc  a  bill  was  tiled  in  chancery 


INDEX. 


523 


to  se<  aside  end  annul  a  decree,  before 
obtained  by  tlie  cif  tcndi.nt  agwinst  tlie 
complainant,  on  the  ground  of  fiaud 
practised  by  the  defendant  in  obtain- 
ing that  decree,  there  appearing  to  be 
no  evidence  of  fraud,  the  bill  was  dis- 
missed, but  without  cmts.  On  an  ap- 
peal to  the  court  of  appeals  by  the 
camplainantj  that  court  ujjjlnntd  so 
much  of  the  decree  as  dismissed  the 
bill,  but  reversed  that  part  of  it  which 
directed  that  the  dismissal  should  be, 
without  costs,  and  decreed  thai  the  ap- 
pellant pay  to  the  appellee  his  costs 
incurred  in  both  courts.  Jlj/'niui,-  v 
Baker,  486 

41.  Fraud  may  be  inquired  into  as  well 
at  law  as  in  equity;  and  where  frauds 
are  clearly  established,  tlie  courts  of 
law,    and    a  court  of  chur.cery,  have 
concurrent    jurisdiction.      S'tngtry  v 
The  jlltonity-Gemrul,  4i»r 

42.  On  a  bill  in  chancery  for  vacating  a 
certificate  of  survey  and  grant  of  tlie 
land,  on  tlie   ground  of  a  fraud  pom- 
mitted  by  a  forgery  of  the  certificate 
— JJffi.',  that  the  court  of  chancery  had 
jurisdiction,  although  the  question  of 
forgery  of  the  same  certificate  had,  in 
an  action  of  ejectment  between   the 
same  parties,  come  collaterally  before 
a  court  of  law  and  jury,  and  the  court 
admitted  evidence  to  establish  the  for- 
ger/, and  the  jury  gave  their  verdict 
in  favour  of  the  defendant,  who  claim- 
ed under  the  certificate  alleged  to  be 
forged.  Ib. 

43.  Although  on  a  bill  in  chancery  charg- 
ing- forgery,  the  defendant  cannot  be 
compelled  to  answer  any  fact  which 
will  criminate  himself,  yet  that   court 
has  jurisdiction  over  the  case;  and  on 
proof  of  the  for  gen,  by  which  a  fraud 
has  been  committed,  will  grant  relief 
by    vacating    the    grant,    &c.    from 
whence  the  injury  has  ari&cn,  or  will 
inake  such  decree  as  the  circumstances 
of  the  case  render  necessary.  Ib. 

44-  The  forgery  of  a  certificate  of  sur- 
vey, and  the  fraud  consequent  there- 
on, being  fully  established — Decreed, 
that  the  defir.dant,  (cla:nang  ui.der 
such  certificate  and  the  grant  there- 
on,) should  convey  to  the  complain- 
ant all  that  part  of  the  land  held  by 
him  under  his  grant  above  mentioned, 
which  is  comprehended  in  the  lines  of 
the  land  granted  to  the  complainant. 

Jit. 

45.  W  P  being  seized  of  a  tract  of  land 
called  P  1),  containing  275  acres,  ex- 
ecuted a  bond  of  conveyance  to  J  C, 
conditioned  that  lie  would  convey  to 


him,  all  his  right,  S^c.  "of,  in  and  to, 
120  acres  of  land  called  P  U,  situate, 
lying  and  being;,  in  the  county  ol  1', 
with  the  appurtenances  thereunto  be- 
longing or  appertaining,  now  in  the 
Possession  or  occupation  of  the  said 
V  P."  On  a  bill  in  chancery  for  a 
specific  performance,  £s.c. — /Aid,  that 
there  being  no  designation  of  the  120 
acres  of  land,  nor  any  description 
win-reby  it  could  be  identified  and  lo- 
cated, parol  evidence  is  not  admissible 
to  show  that  it  was  intended  by  the 
parlies  that  the  120  acres  were  to  be 
laid  off  at  the  southernmost  part  of 
the  tnict.  That  the  bond  is  void  for 
uiif.erti.inty,  except  on  the  principle 
ci'  flection;  and  there  is  no  evidence 
to  prove  that  there  was  any  election, 
made  by  either  of  the  parties  anterior 
to  the  time  of  the  execution  of  the 
deed  from  \V  P  for  part  of  the  tract 
described  by  metes  and  bounds,  to 
one  of  the  defendants,  who  was  a  Ixma 
fide  purchaser  of  the  land  conveyed 
to  him,  without  notice  that  there  was 
any  designation  of  the  120  acres. 
liuntt  cj  Parks  v  Gi*t,  et  at.  4'J8 

46-  A  complainant  is  not  entitled  to  re- 
lief in  equity  against  the  executors  of 
a  joint  obligor,  who  was  a  surety  m 
the  bond.  Per  llani(/flt  Chan.  Wil- 
liams v  llc(?i;son,  474,  (~note_) 

See  Abatement  2. 

Grant  25,  41. 

Injunction  1. 

Preference  1,  2. 

Surety  2. 

COVENANT. 

1.  In  an  action  of  covenant  brought  on 
the  llth  of  February  17W,  upon  an 
agreement  executed  on  the  18th  of 
March  liT9(\  between  M  (the  plain- 
tilf,)  and  G  (the  defendant,)  stipula- 
ting, inter  alia,  that  a  complete  'mer- 
chant mill  should  be  built  by  Al,  of 
materials  to  be  provided  by  G,  \\ho 
vas  also  to  provide  a  framed  or  hew- 
ed  K-gged  dwelling-house  at  the  mill, 
for  M  to  reside  inland  HI  agreed  that 
he  would  take  up  his  residence  at  the 
mill  in  the  dwelling  house,  and  woufd, 
act  as  the  manager  and  superintcn- 
dai.1  pf  the  mill,  which  \vas  to  be 
worked  for  the  joint  benefit  of  M 
and  G  in  equal  parts;  tht»t  is  to  say, 
M  to  rt reive  one  half  of  the  net  pro- 
•  fits,  and  G  ihe  other  Imlf.  The  co- 
partner»hip  to  commence  as  soon  as 
the  mill  should  be  ready  to  do  work, 
and  continue  for  ten  years.  That  * 
of  book:;  should,  be  kc^t. 


INIIKX. 


which  should  contain  all  the  transac- 
tions of  Hie  copartnership,  and 
tl-  mint  should 

1  In.-  lire  wood  should 
be  turnishid  from  the  farm  ort  which 
t;   i.>id<d,  for  the  use  of  two    fire 
places  in  the  nill  and  dwelling-hi 
yl   tiii-   eipial  co-t  of  tlie   parties  for 
cutting  and  hauling  it  to  thr    1. 
and  1J    :n  ii  -;  of  lai.d,    including  two 
acrrs  of  bottom    l.m.i,  most  conveni- 
cnt  to  M,  to  he   put  under  good  and 
sufficient  fence  for  his  use.     'II 
duration  avcrr>-d,    that   the  mill   was 
completed  on  the  -1st  of  Junt  !•'.'.-<, 
and    that    M    performed,    Sic. 
breach  .ifsigned   was,   that  (J,   did  on 
the    .'1st   of  Jann:.ry    17:'J,    for' ildy 
eject  M  from   the    mill  and   premises, 
him  out.     That  G  did 
not  pro\  idc  a  fr.imed  or  hewed  !• 
dwelling-house  at  the  mill,  for  M  to 
reside  in.     That   (J,   on  the    day  and 
id,  Ht'ler  the  mill  was 
complete  and  put  into  complet* 
lion,   did  prevent    M   from  receiving 
one  half  i.t  the  m-t  profits  of  the  mill, 
but  that  (i  did,  contrary  to  tlu  consent 
of  M,  receive  the  whole  of  the  profits 
from  the  clay  and  year  last  aforesaid, 
until  the  bringing  of  this  action,  and 
hath  refused  to  pay  any  part  thereof 
to  M.     Nor  did  Q  furjndi  M  with  12 
acres  of  land,  including  two  acres  of 
bottom  land    most  convenient  to   M, 
under  good  and  sufficient  fence,  for 
Jtl's  use.     The  witness  to  the  agree- 
ment was  offered  by  ('•  to  prove  what 
took  place  between  the  parties  pre- 
•\ious  to  and  at  the  time  of  the  agree- 
ment, as  to  their  intention  and  mean- 
ing in  the  agreement;  also  another 
..ho  proved  that   when  he 
•i   work  upon  the  dam  for  the 
mill,   lie  received  O;I!<T>  fn.m   G  to 
build  the  dwelling-house  for  M,   but 
that  M  told  him  to  continue  to  work 
at  the  dam,   and  not  mind  the  house, 
as  he  could  jitaki-  siiift  with  the  count- 
ing room  in  the  mill,  which  he  occu- 
EK-I'I,  and   declared    that    it  aiisv 
is  p.  '.  and  that  there 

was  no  occasion  to  build  the  dw>-ll:n;,r- 
»  in. til  it   S'I'.KU  the  convei.; 

cf  ti.     y/'W,  tint  the  construction  of 
the  agreement   is  a   matter  of  law   to 
be  determined  by  the  court.     That 
parol   evidence   m:«y    be  admitted  to 
explain    doubtful   parts   but   no   e.vi- 
d   to  prove  the 
i.r  to  provo  ;.ny 
••nt  i.ot  inrhi'lu-1  in 
.  in  the  agreement. 


That   the    evidence  offered  did   not 
dis-.  -inguish   the   ce: 

or  bar  the  plaintitl  \  ii.usc,  or  right  of 
action  against  the  druiitiani,  for  the 

h    in   not    building   the    !. 
that  it    \v*s  only  a  consent   to  a  tc-ni- 
pora-  *>n  o!   the  building  of 

tin   dw»-lling-housc,  and  is  ci;K    prt,- 
per  in  mitigation   of  damages. 
riion  r  li(it/"iri»/, 

2.  JitM  also,  that  at  the   time   of 

bringing  the   ae.tion,  tl-e  pl.iintit!    had 

of  action,  being  dc|>ri\c'il  of 
the  In.  in  iils  und(.rthe  contract. 

/b.  4f>6 

3.  — —  7/c/rf  nlso,    that   the  covenant, 
on  the  part  of  the  defendant,  that  the 
plaintiff    should  receive   one   half  of 
the  profits  of  the  mill,  is  an  indcpt-n- 
dent  covenant^  and  that  it  was  not  in- 
cumbent  un   the  plaintiff,  to  entitle 
himself    to   a  ncovery,   to  prove   a 
conii'liau-e    \\ith,    or    fuliilmuit    of, 
cverv  stipulation  in   (he   covenant  on 
his  p.irt  to  be  performed.          Ib.  467 

4.  //'/./  also,  thv  it  was  not  iieces- 

iitill',  in  order  to  sup- 
port his  arti"ii,  to  prove  that  he  took 
up  his  residence  at  the  mill,  at 
perintendi'd  the  n»me  as  miller,  anil 
(It  vnted  his  time  and  attention  to  the 
mill  in  such  manner  as  ii  usual  for 
men  under  v.  ages  to  do  particular 
work;  that  he  kept  n  regn'^r  set  of 
hooks,  in  which  vore  contained  all 
the1  transactions  of  the  copartnership, 
and  that  he  efl'ected  a  settlement  of 
the  partnership  accounts  at  the  end 
of  the  year  1798,  or  that  he  was  pre- 
vented from  doing  so  by  the  defen- 
dant. That  it  was  only  necessary  for 
the  plaintiff  to  prove  U.M  he  did  en- 
ter upon  the  management  and  super- 
intendence of  the  mill,  according  to 
the  covenant,  and  did  work  and  ma- 
nage the  s:noe.  Ib. 

5.  ///A/a!.;o,   that  for   withholding 

from  the  plaintiff'  the  one  half  of  the 
profits  of  the  mill,  he  could  only  rtco- 
\rrthi-n-for,  from  the  time  whin  such 
withholding  of  the    profits  firM    ii.in- 
menced,  down  to  the  time  when   the 
action  was  brought.  Ib.    -J68 

6.  ill,]    also,    that    the    plaintiff 

might  recover  damage  >-  for  cue  hali'of 
the  net  profits  of  the  mill  clown  to  the 
time  of  bring':!!.;  tin-  action,  on!.          : 
dam..  'ini;  aril  turning 

him  •  "f  tin-  mill, 

and   for  all   advantages   and   benefit! 
which  might  attend  or  result  from  the 

.  thereof,    during  the  line*- 
pircd  term  of  ten  years, 


INDEX. 


licmtcct  withiit  the  net  profits  of  the 
mill;  and  that  ail  action  or  actions  may 
be  brought  by  the  plaintiff  against 
the  defendant  for  one  half  of  the  net 
profits  which  might  have  been  made, 
or  may  be  made,  from  working-  the 
mill  under  the  contract,  from  the  llth 
of  February  1799,  during  the  continu- 
ance of  the  partnership  under  the 
same .  Ib. 

7.  Held  also,  that  this  being1  an  ac-» 

tion  founded  on  contract,  the  plaintiff 
had  only   a  right   to  recover  damages 
for  the  actual  loss,    injury    and  incon- 
venience, by  him  sustained  by  occasion 
of  the  breaches  of  covenant  assigned 
by  him,  (exclusive    of  his  part  of  the 
profits  of  the  mill,)    according1  to  the 
whole  of  the  circumstances    existing 
in  the  case,  without  reference  to  the 
force,  if  any,  with  which  the  plaintiff 
was  dispossessed.  lu.  469 

8.  Held  also,  that  it  was  no  ground 

to  arrest  the  judgment  upon  the  ver- 
dict,   (which    was   for  the    plaintiff,) 
because    the   declaration  stated  as  a 
breach  on  the  part    of  the  defendant, 
the  not  enclosing  the  twelve  acres  of 
land,  &c.  Ib. 

CREDIBILITY. 

1.  The  letters   of  a  witness   permitted 
to  be  read  in  evidence  to  impeach  his 
credit  as  to  what  he  had  sworn  upon 
his  examination   taken  under  a  com- 
mission, contradictory  to  the  contents 
of  the  letters)  but  not   to  prove    any 
other  fact.     Be  Sobry  v  DC  Laistrt, 

219,  220 

CREDIT. 
See  Attachment  3. 

CREDITOR. 

J.  Any  creditor  may  sue  an  executor 
pro  furma,  provided  he  shows  himself 
to  be  a  creditor  under  the  hiws  of  the 
country  where  the  contract  was  made; 
and  as  long  as  assets  remain  in  the 
hands  of  such  executor,  he  is  answer- 
able to  the  creditors.  De  Solry  v 
Terrier,  224 

2.  Whatever   fund   in  this  state  is  an- 
swerable for  debts,    is  answerable  to 
all  creditors  alike,   according   to  the 
laws  of  the  state.  Ib. 

3.  Unless  the  jury  are  satisfied,  accord- 
ing to  the  laws  of  France,  that  a  co- 
heir, with  benefit   of  inventory,    who 
is  also  a  creditor,    cannot   recover    in 
the   quality    of  creditor,  without  re- 
nouncing, then  the  plaintifl',   (who   is 
coheir  and  creditor,)  is  entitled  to  re- 


cover whatever  the  jury  may  fnui 
due  on  the  contract  made  in  Prqaec, 
according  to  the  laws  of  France.  Ib. 

228 
Sec  Request  1. 

Cestui  Que  Use  2. 

Foreigners  1. 

French  Laws  1,  2. 

• Preference  1,  2,  3. 


CRIMINAL  PROSECUTION. 

1.  A  J'aro  table  set  up  in  a  house,   not 
a.  dwelling-house,  out  house,  or  place 
occupied  by  a  tavern  keeper,  retailer^ 
&c.  is  not  an  offence  under  the  act  of 
1797,  ck.     :  0,  which  directs  that  "no 

faro  table"  &c.  "shall  be  set  np,  kept 
or  maintained,  in  any  dwelling-house, 
out  house,  or  place  occupied  by  any 
tavern  keeper,  retailer,"  &c.  Hakir 
v  The  ISlulc,  .i 

2.  \Vliether  or  not  the  court  can  refuse 
to  permit  tiie  counsel  in  a  criminal 
case  from  arguing  to  the  jury  against 
the  court's   construction  of  an  act  of 
assembly,   after  the  court  had  been 
called  upon  to  give  a  construction  to 
the  act?  Quci'e.  ibid. 

3.  An  indictment  containing  two  counts, 
one  charging  felony,  and  the  other  a 
misdemeanor,   was  held  to   be  good* 
Burk  v  The  State,  426 

4.  After  the    prisoner  has  pleaded  ge- 
nerally to  an   indictment  haying  two 
counts,  the  jury  may   be  sworn  ami 
charged  upon  one  of  the  counts  only, 
to  the  exclusion  of  the  other,         Ib* 

5.  V/hen  nine    jurors  are  sworn  in  a 
criminal  case,  and  the    rest    of  the 
original  pannel  is  exhausted  by  pe- 
remptory   challenges,    the  court  can 
legally  award    an  order  for  the   sum- 
moning  only    three    talesmen,    and 
when  eleven  are  sworn,   to  summon 
but  one.  Ib. 

6.  As    to  the  manner    of  awarding    a 
venire   for    summoning    talesmen,  in 
criminal  cases,  capital.  Ib. 

7.  As  to  the  joinder  of  offences  in  cri- 
minal cases,  and  the  joinder  of  causes 
of  actions  in  civil  cases.  Ib. 

See  Indictment. 


CROP. 


See  Overseer  1. 


CURRENT  MONEY. 

See  Court  of  Chancery  ,S. 
•  Mortgage  1,  -. 


1X1. 


D. 

M  \c.r.$. 

1.  In  an  action  <M"  replevin  the  jury  may 
Mich    damages  as  thiv  think  the 
plamtilF  U   jusHy    entitled   to, 
rf{ui\u!int    for  the   injury   suv 

413 

<Stt  CoYenant. 
—   On  laration  3. 

Dowvr  1,  4. 

Ueplcvin  1. 

DATE. 

&e  rroiiii.'sory  Not? 

DAY  BOOK. 
S«  Evidence  8. 

DT.RT. 

$6e  Application  of  Payments  1. 

Hoquest    1. 

Discount  2,  4. 

-  •     '      Extinguishment  1. 
>    KcU. 

DF.HTOR  AMI  CHKD1TOR. 

•ini^iis'jnK-nt  1. 
• Hclcxse  1. 

DBCLARATlQfJr. 

1.  A  judgment  of  tin-  court  below  upon 

a  jeinTal    vcrd'.ct    if.  u*xit>nj»"'f,    was 

•  v  there  was  one  count 

in  the   declaration    to  which    the  evi- 

il«-iico  did  not  apply.     Grant  r 


2.     A    declaration    containing1    sundry 

counts   on  a  letter   of  credit   or  £tia- 

ran'v,    some  of  whic.i    were  held   to 

be  fb. 

\    leclaration  in  replevin,    omitting 

i  damage,   is  fuUl.     Fagtl  c 

350 

Ket  Covenant  8. 

Dower  1. 

Joinder  of  Actions  1. 

T  |{«'pli-\in  ! 

Slander  1,  1 

DF.f  !.ui  vmv*. 

of  tbc 
,!c    of 

the  slave   for  which    an    action   ••('  r--- 
<\  wa*   brought,    and    bef> 

• 

of  the  plaintifl' 
nay, 
.      \\  •'..     P.s-ver  to  a  bill  in  eh-in- 

.  f'-din 

:h  the 

an}'  •  winusfiibla  in  evidence, 


yet  the  declaratiims  of  the  defrndant 
arc;  and  a  witmss  may  rvcur  to  the 
n-lit  s'i  hi-*  memory,  as  to 
tlie  declarations  made  to  him  b>  tlie 
defendant 

3.  Declaration* made  by  the  defendant 
before  and  after  his  dWimiyv  undir 
an  insolvent  law,  ma\  be  given  in  e\i- 
dcnee  r>;^  ,  /i.  410,  41J 

,*5. 
nee. 


Iff  REE. 

1.   A  bill  filed  in  chui»ci-ry  to  stt  a-idc 
and  ann'jl  a  decree  obixuiud  \>\  hand. 

l''l  M'|,       ,    ;i;ui 


$ee  Court  of  Chancery  15. 

-  Enro1 

-  -  Kvidi-nce  5<J,  78. 

-  livvcratl  1. 

DEBDL 

1.   P.irol  evidence  not  admitted  to  nrove 
tint  a  deed    of  in:innmissii»n    wa-.    -t- 

cs    '.  ,i    his 

name  thereto.     Ntgro  JOJHCS   v    Gui- 

176 
&c  Conveyance. 

-  Inspcximus  1. 


DKFF.CTIVF: 

See  Acknowledgment  of  Deeds. 

-  Presumption  J. 

DEFECTIVE  TITLE. 

See  Gr.mt  7. 

-  Presumption  3. 

DELIVERY. 
See  Evidence  8. 

-  Non  Esi  Kactum  1. 


1.    A  f*rnera!  demurrer  to  a  declaration 

in  dower   b  Tilled,  jnd^rm-nt 

was  i  I   for    the    diMnuudant    for 

dower  and   costa.      A 

53  (' 

'•:  PARTUHK  IN    I'LLADIXU. 
•••-Kdin1  1. 


!  -Mil-XT   COVr.XA.NT. 
See  Covenant  3,  4,  8. 

in-  c  i>i  ri'iv. 

1.  The  deposition  of  a  witness  taken  on 
i    dispute, 

permitted  to  be   read   in  cviden 
the  trial,  the  viti  uut  of  tl>c 

state,  and  due  dihgenoc  luviiii;  been 


INDEX. 


0)60 


Msec!  to  procure  his  attendance.  Ihw- 

nrd  e  Moals  et  fit.  Lcs.ice,  272 

2.  The  deposition  of  a  witness  to  be 

taken  under  the  act  of  July  1779,  ch. 

8,  to  perpetuite  testimony.     Sec  UK- 

SIDENTH  2,  ami 

liri/den  v  Taylor,  396 

See  Commission  and  Commissioners  4,  5. 

DEPUTY  CLEKi:. 
See  Clerk  I . 

DESCENDANTS. 

See  Evidence  56. 

DESCENTS. 

Sec  Estate  Tail  10. 

— —  Tenant  in  Common  1. 

DESCRIPTION. 

1.  Whether  or  not  lands  seized  under  a 
furl  f/t:-'(ii  are   sufficiently   described 
in  the  sheriff's   return  thereof?     See 
1'fKiu  FACIAS  2,  and 

M'Kl Jerry  v  Smith's  Lessee,  72 

2.  If  there  are  two  descriptions  of  the 
land  granted,    the  one  by  name  and 
the  other  by  metes    and  bounds,  the 
grant  will  operate  to  pass  the  land  ac- 
I'ording   to  that  description  which  is 
most  beneficial  to  the  grantee.      Ifall 
v  GitHngs,  Jr'it  Lessee,  117 

3.  An  escheat  grant  operates  to  pass  the 
whole  of  the  original  tract  escheated.  Ib 

4.  As  to  a  variance  between  a  descripti- 
on of  land  contracted  to  be  sold  and 
conveyed,  and  that  used  in  a  grant  of 
the  land,  see    COUKT  os  CHANCERY 
3  >,  and 

Hammond  v  Sappini*'.nn,  446 

5.  There  being  no  designation  of  part 
of  a  tract  of  land  contracted  by  a  bond 
of  conveyance  to  be  conveyed,    nor 
tiny   description   whereby   it  can   be 
identified,   parol  evidence   is  not  ad- 
missible to  show  that  it  was   intended 
by  the  parties  to  be  laid  off'  in  a  par- 
ticular manner,    and  the  bond  is  void 
for  uncertainty,  except  on  the  princi- 
ple of  election.     Huntt  c>    Parks   v 
Gist,  et  al.  498 

&e  Evidence  24. 

DESIGNATION. 

1.  There  being  no  designation  of  part 
of  a  tract  of  land  contracted  by  a  bond 
of  conveyance  to  be  conveyed,  nor 
any  description  wrhireby  it  can  be 
identified,  parol  evidence  is  not  admis- 
sible to  show  that  it  was  intended  by 
the  parties  to  be  laid  off  in  a  particu- 
lar manner,  and  the  bond  is  void  for 
uncertainty,  except  on  the  principle 
VOL.  II.  67 


of  election.     Ifuntl  &  Parka  v  Gitt 
d  al.  49S 

1)EVASTAV[T. 

See  Executors  and  Administrators  7. 

DEVISE. 

1.  A  devise  of  lands  to  a  creditor  does 
not  extinguish  tho  debt  or  claim  which 
he  has  against  the  testator.  Partridge 
v  Partridfr?.,  63 

2.  The  following  devise  created  an   es- 
tate tail  in  the  devisee,   viz.   "I  give 
and  devise   to  my  son  R  L,   all   that 
land   called,"  Sic.  "to  him   and  his 
heirs  for  ever;  and   in  case  he   dies 
without  heirs,  to  my  son  J  L,  and  the 
heirs  of  his  body  lawfully  begotten- .JI 
Laidter  v  Young's  Lctsseet  69 

3.  An  estate  tail  cannot  be  devised  un- 
der the  act  of  1782,  ch.  23.  16. 

4.  A  will  containing  the  following1  de- 
vise, viz.  "I  give  and  bequeath  to  my 
sister  E  W,  all  my  real  estate,  during 
her  natural  life,  and  after  her  decease 
to  ITU  nephew   T  W,   and   his  heirs 
lawfully  begotten;  but  incase  my  said 
nephew  should  die  before  he  arrives 
to  the  age  of  21,  or  leaving1  issue  law- 
fully bcg-ottcn,   theft,    &.c.     T  W  ar- 
rived to  the  age  of  21  years,  and  died 
without  issue — Held,   that  the   estate 
tail  was  docked  by  the  deed  fronv  T/ 
W  to  W  B,    although   W  I!   was  de- 
clared to  hold  the  land  in  trust  for  T 
W,    and  those   claiming  under  him. 
Broifdtn  v  IValkrr's  Ex'r.  &fc.        ^85 

5.  T  T  by  his  will  dated  in  1795,  devised 
his  lands  to  be  equally  divided  between 
his  two  nephews    WC  and  \V  S,    to 
them  and  their  heirs  for  ever;  and  hi 
case  W  C  died  without  lawfuT  issue, 
then  devise-done  Iraft'of  the  said  lands 
to  his  nephew  G  S,  to  him  and   his 
heirs  for  ever.     Held,  as- 1#  a  moiety 
of  the  lands  devised  to  W  C,    flrat  on 
his  death  without  lawful  issue,  the  es- 
tate tail  became  extinct,  and  the  limi- 
tation over  to  (i  S  took  effect,  and  one 
moiety  of  the  lands  vested  in  him  in  fee 
simple.  Sm:'tk  ef  til.  v  Smith  et  al.  314 

6.  K  II   by  his  will  devised  as  follows, 
viz.  "I  give  and  bequeath  unto  my 
dearly  beloved  son  C  H,  the  free  use 
of  my  land  called,"  &.c.  "with  all  the 
houses,"  &c.  "during  his  natural  life, 
to  occupy  and  enjoy   the   same;  and 
after  the  decease  of  my   son   C  H,  I 
give  and  bequeath  the  said  land,"  &c. 
"with  all  the  houses,"  &c.  "unto  the 
heirs  of  my  son  C  H,   lawfully  be- 
gotten of  his  body  for  ever;  and  for 
want   of  such  heirs,    I    give,"    &c. 
Held,    by    the    county    court,    that 


B30 


I??DKX. 


under  this  devisf ,  C  II  took   an  estate 
mta  Krys  iJ  Horn  v  Golds- 

borough's  Lotetf  371 

See  Executory  Devise. 

DILIGENCE. 
See  Deposition  1. 
Evider.cc  48. 

DISAFFIRM 
See  Acts  1,  2. 

DISCHARGE. 
See  Insolvent  Debtor  1,  '.'. 

DISCOUNT. 

1.  Thr  defendant  may  set   off,    asrVmst 
the  plaintiff's  demand,  a'  note  of  the 
plaintiff's  accrued  subsequent  to  the 
commencement  of  the  action.   Clurkr 
v  Magnifier  et  aL  77 

2.  A  debt  or  demand  may  be  set  ofT,  or 
pleaded   in  discount,-  altliough  such 
debt  or  dcmund  was  not  subsisting  at 
tlie  time  the  action  was  brought.     Ib. 

3.  In  an  action  of  trover  for  corn  plac- 
t-.l  iii    the   warehouse   Of  die  defen- 
dants on  storage,' and   which  t!. 
fused  to  deliver,  but  claimed  to-ret.Mii 
it  for  the  payment  of  a  debt  due  to 
them  from  the  pl.iiiUitF,  for  articles 
.sold   and    delivered — IfrlJ,    tlr.it    us 
there  was  no  evidence  that  the  corn 
was  delivered  to  the   defendants  to 
be    applied    by    them    to    the    dis- 
charge of  the  debt  duo  by  the  plain- 
tiff to  them,  or  was  placed  in  their 
hand*  as  factors,    with  authority    to 
sell  the  same,  the  plaintiff  was  en- 
titled to  recover.     Levering  v  Bond's 
Mm'r.  300 

4.  The  defendant,  as  surety  for  F  R  in 
a  bond  for  the  payment   of  inon.-y 
jfivcn  to  the  plaintiff  as  trustee  for 
the  sale  of  an  estate,  having  pleaded 
payment,  at  trial  ofl'cruj  to  file  an  ac- 
count in  bar,  claiming  in  the  name  of 
T  B  a  sum   of  money  due  to  him   as 
his  proportion  of  the  amount  of  the 
sales  of  the  .-state — //•/</,  that  the  ac- 
count  could    not   be  filed.     Irantt  o 
Rou'ie's  .-Mnr'r.      ^.  371 

See  Court  of  Chancery  1 5. 
— —  Evidence  59. 

DISTRIBUTEE  8c  DISTRIBUTION. 
1.  Any  creditor  may  sue  an  executor 
pn>  formti,  provided  he  shows  him- 
self to  be  a  creditor  under  the  laws 
of  th<;  country  where  the  contract 
v.1*  in  i  lc,  n-.\t\  a*  long  as  assets  re- 
ouiu  in  the  hand*  of  such  executor 


he  is  answerable  tr  tUe  creditors;  aini 
if  there  is  any  surplus  it  is  ti>  ^o  into 
the  mass  of  the  MICCCVMOH,  to  lie  dis- 
tributed according  to  the  laws  of  the 
country  win-re  the  trstator  was  domi- 
nie. I.  '  /)(  .V-..';r,y  ;•  7' 

2.  Personal    property    adheres  to   the 
person;  ami  wherever  the  testator  irt 
doimcil  at  the  tune  of  his  death,  the 
property    is  to  lie    distributed  accor- 
ding to  the  laws  of  that  countr  . 

3.  No  part  of  the  personal  estate  of  a  tt-s- 
tator,  dying  in  France,  U  subject  to  dis- 
tribution among  his  coheirs,    but  th-s 
surplus  or  residuum  remaining   after 

the   payment  of    all  his    de'j 
legaci.-s.  ^6.   22» 

Sec  Evidence  3. 

DOMICIL. 
See  Contract  9. 

-  Distribution  1,  'J. 
—  —  Foreign    Laws  4. 

-  Ftv.K'ii   I  .i-v-    1,  £. 

I,   2 


-  Testator  1,   2. 

DOHMAN  i-  i>\:n 

Sec  Partner  and  Partnership   L. 

DORMANT  TITLE. 
See  Possession  5. 

DOWBR 

1.  In  an  action   of  dower  it  is  rmt   rte- 
cessary  to  lay  any  damaces  in  tiic  de- 

claration.      j\i  ':      .  !^,  53 

2.  Parol   evidence    admitted    to    prove 
that  the    laud  granted  to  the  hu 

of  the  demandant  is  the  same  land  of 
which  dower  is  demanded.  /'/. 

3.  A  demurrer  to  a  declaration  in  dow- 
er  being    overruled,    judgment  was 
entered  for  dower  and  costs. 

Jb.  rnntr  ) 

4.  In  an  action   of  dower  a  ju<l. 
w-is   confi-sM-d'  for    the   deuui.- 
dower  claimed  in  the  lands.       A  writ 
of  h'ibcrc  jitcian  uriyiintm  issued,  anil 
tl»e  dvmambnt's  dower  laid  off.      On 
the  return  of  the   writ,    the   county 
court  i-ntep-d  judgment  for  nominal 
d-tmages.  and  cosN.       On  appeal,  the 
judgment  for  the  damages  aivl  <-tKt< 
was  reversed.      Hammond  i  11 
etux. 

DRrVKr.VVF.SS. 
See  Court  of  Chancery  35. 

niLHiF.NCE. 
See  Deposition   1. 
—  Evidence  48. 


INDEX. 


531 


E. 

EJECTMENT. 

1.  An  equitable  title  in  the  defendant 
•to  lands,  will  not  prevent  a  recovery 
against  him  in  an  action  cf  ejectment 
brought  by  a  person  liavir.g1  the  legal 
title.  Sounders,  et  ux.  v  &imp\wi,  t  1  ux. 


. 

2.  VVJiether  or  not  twenty  ye:irs  exclu- 
sive and  unmixed  possession  of  a  tract 
/>f  land  by  cultivation  and  general  use? 
•without  an  actual  enclosure,  is  such  .a 
.possession  as   will  bar  a  recovery  in 
an  action  of  ejectment?  Qucre.   Cheney 
v  Kinggold,  et  al.  Lessee,  t>7 

3.  Whether  or  not  twenty  years  posses- 
sion of  a  part  of  a  tract   of  land   by 
actual  cultivation  and  .enclosure,  with 
nn  exclusive  and  unfixed  enjoyment 
of  all  exterior  to  the  enclosure,  by 
sparsim  cutting  and  general  user,  will 
bar  a  recover}-  in  ejectment,  of  the 
parts  not  enclosed?     Qucre.  Jb. 

4.  Where  the  plaintiff  with    title,    hav- 
ing possession  by  enclosure  and  cultU 
vation  of  a  part  of  a  tract  of  land, 
claiming  the  '  whole,   and  the   defen- 
dant, withou|  title,  having  possession 
by  enclosure  of  a"  part  \of  the  same 
tract,  with  the  vise   (by  cutting  tim- 
ber, Stc.)   of  the  ether  parts  not  in- 
^closed,  the  plaintiff  ia-  bound  by  the 
act  of  limitations  as  to  that  part  of  the 
Jnnd  which  is  in  the  possession  of  the 
defendant  by  actual  enclosure  for  more 
than  twenty    years    next    preceding 
the  bringing  his  ejectment,  but  not  as 
to  the  parts  used  by  the  defendant  ex- 
terior to  the  enclosure.  Ib. 

5.  VVhen  t\yo  ire  in  mixed  fxosscssio.n 
of  the  same  land,  one  by  title,  a^d 
the  other  by  wrong,  the  law  considers 
him  having-  the  title,    as  in  possession 
to  the  extent  of  his  right.  fl>. 

6.  'I  he  act  of  limitations  did  not  attach 
or  run  against  the  Lord  1'rop.rietary 
on  any  possession  of  vacant  lands,   Ib. 

7.  If  the  testimony  of  a  witness  interested 
is  intended  to  be  objected  to  because 
of  his  holding  adjoining1  land,  his  in- 
terest must   be  located  on  the   plots. 
Hall  r  Gitt'nigs  jr's.  Lessee,  120 

$.  The  declarations  of  a  former  holder 
of  adjoining  lands,  as  to  the  bounds 
of  the  land  in  dispute,  admitted  in 
evidence,  it  not  appearing  by  the  plqts 
that  he  was  interested  in  establishing 
the  facts  related  by  him  .  Ib.  121 

9,  I  nan  action  of  ejectment  the  plain- 
tiff must  recover  on  the  strength  of 
his  own  tide.  Jb.  122 

IP,  The  defendant  in  ejectment  may 


prevent  the  plaintiff  from  recovering1, 
by  showing  a  .title  in  himself,  or  a  clefir 
subsisting  title  in  a  stranger.  Ib, 

11.  A  clear  subsisting  title  outstanding 
in  another,  means  such  a  title  as  A. 
stranger  could  recover  on  in  ejectment 
against  either  of  the  contending  par- 
ties*. Ib. 

12.  Possession  is  presumptive  evidence 
of  right,   and  a  defendant  in  eject- 
ment cannot  be  deprived  of  his  pos- 
session by  any  person  but  the  right- 
ful owner  of  tlve  land — that  is,  he  who 
hath  the  JIK possessionis.  Ib. 

13.  ;>othing  but  twenty  years  adverse 
possession  can  defeat  a  title  acquired 
under  a  legal  grant.  lb» 

14.  I  he  jury  were  directed,  that  if  they 
believed  certain  facts,  then  the  pre- 
sumption of  Jaw  was,   that  /  S,  to 
whom  the  land  in  dispute  was  grantrd 
in  16£4,  was  seized  thereof,  at  the 
iime  of  his  will  in  1683,  and  his  death, 
in   !  685,   and  no  presumption  could 
arise  from  the  said  facts,  that  he  waa 
not  so  seized.  Jb.  126 

15.  VV'here  the  plaintiff  has  made  but 
one  location  on  the  plots,  of  the  be- 
ginning of  the  tract  of  land  for  which 
the  ejectment  is  brought,  and  that  is 
counterlocated,   the  jury  cannot,  by 
reversing  lines,  &c.  ascertain  by  their 
verdict  a  different  beginning  for  the 
plaintiff  than  that  located  by   him. 
Hammond,  d  al.  Lessee  r  Nvrris,    148 

J6.   The    plaintiff  in   ejectment    must 

'make   such  locations  of  the  land  on 

the  plots  as  will  suit  his  case.          Jb. 

\7 .  — —  I  he  jury  cannot  find  a  loca- 
tion of  their  6wn,  but  if  they  find  for 
the  plaintiff,  they  must  find  some  one 
of  his  locations  on  the  plots.  Ib. 

18.  If  the  beginning  of  a  tract  of  lantj 
is  lost  or  cannot  be  proved,  then  the 
beginning  is  to  be  found  by  reversing 
}he  lines  of  the  tract  from  the  first 
known  and  established  boundary. 
Ib.  149 

1'9.  A  person  out  of  possession  for  more 
than  twenty  years,  where  there  is  not 
an  adversary  possession  in  virtue  of 
some  right  or  by  actual  enclosures, 
his  heir,  or  a  person  claiming  under 
him,  may  bring  an  ejectment  without 
actual  entry  into  the  land.  Hammond, 
et  al.  Lessee  v  Warfield,  156 

20.  A    naked    possession,    (possession 
without  right,)  is  only  adversary  to 
the  extent  of  actual  enclosures.      Ib. 

21.  To  entitle  the  party  to  the  benefit 
of  the  relation  of  his  patent  to  the 
certificate  of  survey,  it  is  incumbent 
on  Lun  to  show  an  equity ;  and  t£^ 


B38 


INI 


producing  copier  under  seal,  of  the 
warrant,  ceitilicatc   and  grant, 
suthcient  to  entitle  him  to  such  bene- 
fit. ///.    .58 
I  he  timr  wh<  n  a  certificate  t>f  sur- 
was  returned  to  the  land  o'hcc   is 
*  matter  of  fact  dctcnninable   by   tlie 
Ib.   159 

crtain  facts  and  circumstan. 
admissible    in   evidence   to   prove  at 
what  time  a  certificate  of  sui\c\  \\.«s 
returned  tn  the  lund  office.  Jb. 

24.  'l*he  actings  ami  doings  of  a  person 
under  whom  tin-  parts  do.  s  not  claim, 
not  permitted  to  be  given  in  evidence. 

Hi. 

25-  A    mortgagor   cannot    support    an 
ejectment  h.r   the    land   mortgaged, 
unices  lie  can  show  thntthi-  mi' 

had  been  satisfied  rrevious  to  tlie  time 
of  bringing  the  ejectment.  Btall,  rf 
al.  Ltsfcc  v  //aru.'oodt  172 

26-  In  an  action  of  ejectment  brought 
by  the  h-s-.ee  of  the  I't.-tn/nf ""  l}<i>.>./>, 
the  plaintiff  offered  to    read  in  evi- 
dence certain  entries  in  a  book   pur- 
porting to  be,  and  proved  by  a  wit- 

.  who  was  formerly  register  of  the 
Vestry,  to  be  handed  down  to  him  as 
the  vcstiy  hook  of  the  parish — J/'h', 
that  the  testimony  was  improper,  and 
ought  not  to  be  read  in  evidence. 
J/u.v/w  if  Strath  v  Gunbij,  c.t  ul.  Lesstf, 

248 

27.  The  death  of  one  nf  the  lessors  of  the 
plaintiff   in   an  action   of  ejectment, 
may   be   suggested  after  the  jury  arc 
sworn,  and  his  heir,  &c.  need  not  ap- 

-,  or  l>f  m:ide  a  party.  Howard,  o 
M<«tk,  ct  ul.  Lf.'xfe,  249 

28.  Where  the  first  and  second  coui-ses 
of  an  original  grant  of  a  tract  of  bud 
called  Jt  f,  are  described  as  "begin- 
ning at  a  bounded  locust  tree,  bring 

N  K  bounded  tree  of  D  P's  land, 
d  U  (J]  and  running  by  the  l.vid 
of  th<;  said  P,  i  - 

oak,  then    N  I-'.  I  "<>   ps  to  a  bounded 
red  oak  of  thr  s-^id  /"^land;"  and  the 
first  aiul  second  courses  of  an  c 
^rant  of  the  >unc  bud  called  D  /•',  is 

••''»cginniiv£  .it  a   I 

now  biiiindcd  M  or  very  near  to  tho 
place  where  stood  a  bounded  !• 
the  origins!  beginning  tree  of  i)  F, 
and  a  bounded  t.-ve  of  a  tract  of  land 
called  I'  (',  f»>rmerly  laid  out  for  I)  P, 
»nd  running  trtence  with  the  said  L-md, 
t<>5  pg  (it  being  <  .1  tlia 

of  the  originaK  survey  to 
run  by  the  land  of  th.-  s»id  P,  K  6-i 
pit  to  a  bounded  red  oak,  which  can- 
UOf  bcfound,)  thcucc  N  t  -JJ8  ps  sUll 


bounding  on  thr  said  land,  to  the  N 

XV  liniiirh    of   l'i:'' f\*rn   i:\er, 
ing  then  in  rx^revs,  .1  to  run  >  i 

a  hounded  red  oak   of  the  said 
J"i  lain),   and  the    certificate    of  the 
.••aid  /"v  lund  mentioning  to  mn   Hut 
course  to  a  hinimli  ii  i\-d  i     • 
by  ihe  >i(K   ot 

\vliirh  oak  is  n«/t  know  n") — lltM,  that 
there  was  no  doubt  or  an: 
th*t  if  the  beginning  of  U  /'is  rightly 
located  on  the   plots  in  t' 
the  termitution  ol  the  twelfth    hn<   of 
/"  (',  and  there  is  no  evidence  of  the 
existence  of  *ny  tree,  as  culler, 
the  termination  of  the  first  Kt.e  of   I) 
}\  then  the  e\j>r«-s,i«nis  ill  the  i 
gran*,  do  bind  that  grant    to  the  tn  e 
location  of  the  original  '.r.ict  culh-d  I) 
F,  as  to  the  tw<>  thereof,   so 

fnr  as  the  second  line  of  the  o 
did  actually  extend;  and  that  t 
and  second  lines  of  tlie  original  tract 
do,  by  virtue  of  the  express. ons  tin  n-. 
in  used,  bind  i'..  ..n  the  thir- 

teenth and   fourteenth   liiKb   »•!    I '    '. '. 

23.    V^'hcrc  the  plaintiff  has  not  i 

his  escheat   grant  on   the  plols  in  the 
cause  co-extensive   with  the  location 
of  the  original  tract,    he  cunno* 
evidence  to  extend  his    prete: 
beyond   tlie  lines  and   limits  he    has 
given  to  the  escheat  grant;   but  he  is 
estopped  by  that  location  from  going 
be\ond  the'letttr  /',   located   on   liio 
plots,  from    whence  he    must   n«n  to 
the  head  of  //<*«'««/'«  branch,  at  wtiat- 
t-ver  poifit  the  same  ma\  b> 
to  his  location  of  his  pj-fteii.^io-. 
the  location  by  which  the  defendant 
has  taken  d. fence .  ///.  ^(56 

30.  The  plaintiff  cannot  give   any  evi- 
dence of  the  lines  of  'his  esdie.-i! 
ninning  otherwise  th:i'  he  h:..s  located 
them  on  the  plots  as  his  pretensions- 
but  he  is  irot  precluded  from  giving 
evidence   of  any   other  lin<-s,    us  tho 
lines  of  the  ori.i-urd    tr-ict,    by    u 
illu-.tmtion;  and    he   Hiuy  support  the 
:)ivt!-|i»io:is,  <o    fin-  gs 
•  ;in    show    tbiit     tlie\     are    1, 
within  the  limits  of  the  original  tract, 
Hi 

31-  'I  he  court  refused  to  Hirect  the  jury 

•    that  an  i^chi  :it  grant  did  not  p.i 

land   inrluded  in  the   origin  d  j-rmr', 
except  the  sarru  ...h-d  witliin 

the  metes  and -bounds  ot   the  «  M-hcat 
grant,  as   pariicnlavly  denrri!>.-«l:  ..n.f 
that  the  escheat  gr«nt  did  not  b\ 
operation  convey  all  the  land  includ- 
ed witfajn  the  original  grant, 


INDEX. 


033 


*  the  particular  metes  and  bounds  of 
the  escheat  grant  did  also  include 
lli<-m.  Ib.in 

32.  The    court  directed  the  jury,  that 
tlu'v  may  find  the  true  location  of  the 
tract,  of  land  called  1)  F,  for  which  the 
ejectment  was  brought,   by  a  greater 
or  less  variation  of  the  compass  as  may 
appear  to  them  proper  from  the  evi- 
dence, provided  that  by  such  allow- 
ance of   variation  they  do  not  enlarge 
or  extend   the  plaintiff's   pretensions 
beyond  the  location  of  his  pretensions 
on  the  plots,  or  beyond  a  straight  line 
to  be  drawn  from  the  letter  V  to  the 
head  of  HMVUH/'*  Crunch,'         Ib.  <!74 

33.  The  court  directed  the  jury,  that  the 
plaintiff  could   not  recover  any  land 
which   should  be  found  to  lie  without 
and  beyond  a  straight  line  to  be  drawn 
from  the  letter  V  on  the  plots,  to  the 
head  of  Howard's  IVranch,  (he  having 
located  that  line  of  his  grant   in  that 
manner,)  altho'  those  lands  should  lie 
within  the   lines  of  the  tract  of  land 
for  which  the  ejectment  is  brought^ 
and  also  within  the  lines  of  the  plain- 
tiff's pretensions,  as  located  on  the 
plots.  7^275 

,")4.  The  court  refused  to  direct  the  jury, 
that  if  the  plaintiff  is  estopped  from 
showing  the  true  location' of  the  land 
for  which  the  ejectment  is  brought, 
different  from  what  is  located  by  him 
for  his  pretensions,  so  as  to  prevent 
him  from  recovering-  what  is  contain- 
ed in  his  pretension*  within  the  true 
location,  the  defendant  is  also  estop- 
ped from  saying  that  the  true  location 
is  different  from  that  given  by  the 
plaintiff.  J(j. 

55-  The  jury,  by  their  verdict  in  an  ac- 
tion of  ejectment, ' hiving*  found  tlie 
true  location  of  the  haul,  for  which 
the  ejectment  was  brought,  to  be  from, 
the  letter  .#  to  a,  to  3,  to  four  pcrclifs 
leluw  big  /',  the  head  of  Howard' $ 
Branch,  ami  then  to  Jl:  they  also 
found  for  the  plaintiff*  his  preten- 
sions, (not  being  to  the  extent 
of  the  said  location,  "*  to  be  from  A  t0 
C,  to  f,  to/our  prrc'teii  Islmv  big  /',  the! 
head  of  Howard's  Hranch,  and  then  to 
Jl,  and  that  the  defendant  was  guilty' 
of  the  trespass  complained  of  within, 
the  said  pretensions,  and  not  guilty  as 
to  the  residue  of  the  trespass  com- 
plained of  in  the  residue  of  the  land. 
lli-ldt  that  there  was  uncertainty  in 
the  verdict.  //;."  276 

3(5.  A  private  plot  of  the  lands  in  dis- 
pute, permitted,  under  certain  cir- 
cumstances, to  bt;  read  iu  evidence, 


37.  A  deposition  taken  on  the  survey, 
of  a  \\  itliess,  'who    \vas  absent  out  of 
the  state  at  the  time  of  the  trial,    was 
permitted  to  he  read  in  tvidenct-,  due 
diligence  having  both  used  to  obtain 
the  attendance  of  the  witness.  Jfi.  ^72 

38.  "Where  the  facts  offered  in  cvjder.ce 
by  the  pla'.lititt  were  not  sufficient  and 
legal  e\idence  to  warrant  the  jury  in 
finding  that  a  pel-son  under  Whom  the 
plaintiff  claimed  died    sci/.cd  of  the 
land   for   which  the    ejectment    was 
brought,    in   opposition  to  6U  years 
possession    of     the     defendant  —  the 
strongest  presumption  of  a  good  titie 
being  in  favour  of  the  defendant.  Da- 
t'/4f*  /rfsfec  v  Jjai'is's  Ilrirs, 

40.  A  1'  by  his  will  devised  to  C  C  &  A 
M  all  his  real  estate  to  be  sold  by  them 
for  the  payment  of  his  debts.     Evi- 
dence of  a  sale  made  at  auction  by 
them  to  W  G  of  a  part  of  the  real  es- 
tate, together  'with  u  inenioraiiduni  of 
the  sale  subscribed  by  the  auctioneer, 
apd  a  receipt  given  by  them  for  the 
purchase  money  —  Hi  Id,  to   be  admis- 
sible and  competent  to  show  a  title  a* 
law  in  W  G,  without  a  deed  of  bargain 
nnd  s'ale,  or  other  conveyance  to  him 
from  the  trustees,  and  to  be  sufh'cieiit 
to   enable  his  lessee  to    recover  the 
lands  in  an  action  of  ejectment.    Keys 
EJ?  Horn  v  QoUitofOUglfB  Lessee,     36S 

41.  \\  here  a  deed  for  part  of  a  tract  of 
land  has  not  been  particularly  located 
on  the  plots  in  the'  cause,  it  may  be 
road  in  evidence  if  the  whole  tract  i» 
united   in  the  same    person,  and   tha 
whole  has  been  located.     Hull  c  Gil* 


lings'  xLe&vc?,  "  382 

42.  If  the  possession  of  land  has  gone 
agreeably  to   an  ancient  deed  which, 
Heeded  no  enrolment,  the  inspexiinut 
<>f  the  deed  may  be  read  in  evidence, 
and  is  effectual  to  pass'  the  land, 

Jb.330 

43.  f^ffme  cpvcrf,  one  of  the  grantors  in 
a  deed  conveying  a  tract  of  land,  tliti 
acknowledgment    of  which    by   1u-r, 
having  been  declared  to  be  defective, 
was  admitted  to  give  evidence  oh  tlm 
part  of  the  defendant  in  an  action  'ot 
ejectment  brought  for  the  same  land 
by  a  person  claiming-  under  her  deed, 

Ib.  3tf6,  CnoleJ 

44.  Where  the  defendant  in  an  action 
of    ejectment   was   in    possession   of 
^OO  acres  of  land  by  enclosures  and 
cultivation  for  \5  years,   and  then  en- 
larged his  enclosures,  sous  to  include 
150  acres,  and  he  possessed  liu  srnie, 
so  t-ii!;.:  •;;•<:<[  by  enclosures,  for  6  years 
ti  »•-"..  .:.'.:$  Uii   a.,:iic  fc's  his 


INDIA 


\vn— Held,  thut  he  hail  title  to  the 
100  acres  by  u  sscsMon. 

Ib.  390 

«;5.  Where  the  expressions  used  in  -x 
jrrant  of  i.m.l  described  it  as  • 
i>n  the  ndtfc  of  (iunpowder  river, 
hepinning  at  a  bounded  o:.k,  bcinj; 
the  UT-itirnmost  bounds  of  a  tract  <»f 
Jan. I  laid  out  tor  M  S,  xi>d  rnnninjf  \\ 
500  ps.  to  a  bounce. i 
tlit  gr:ut  /.•//*,  and  running  .N  from 
.the  s*id  oak,"  5tc.  flclct,  th:«t  th-.-y 
clo  not  operate  to  hind  the  first  line,  tc 
terminate  at  the  great  falls,  although 
no  evidence  is  given  of  ijic  tree  or 
plar.e  where  it  stood.  /••.  392 

46-  The    declarations    of   a    <1 

person,    then  sei/.ed  of  a  particular 

of  land,  not  located  on  the  plots 

in  tin-  cause,  were  offered  in  e  \idej.re 

by    the    defendant    in   an   action    of 

ejectment,  In   prove   the   end  of  the 

first  line  of  that  tract,  which  was  the 

•:ni.n£  "f  the    land  claimed  and 

located  on  the  plots  by  the  defendant. 

•',  tint    the  declarations  \verc  not 

•dMMtble  jivevjden  •    /6.  393 

an  action  of  ejectment  for  oO 

-  of  arable  land,  10  acres  c; 

<low,     and     JiM    acn-s  of  voodland, 

}>art    of  .1  tract   of  land  called    11  ]•', 

<hc  jurj-  by  their  •verdict    found  .the 

true   location   of  that   trnct,  ard  also 

the  locations  of  other  tracts  for  whicii 

<he  dtfeiu'.ant  took  'I  hey 

.   found   for    the   p!:iintiH'  all  ihe 

jand  called  //  /  d  by  them, 

v.hich  lies  cJc-.i"  of  the  other  iract.s  so 

.located  by  them,  and  which  lies  to 

eastward    of  a  division   line   be- 

t ween  the   plaintiff's  lessor  and  J  Sj 

Jro.ni   a    pavticuku-   |)oint  to   another. 

J/fh/,  that  the  verdict,  and  the  jndff- 

jiient  tlu-reon  r-.-n.lere:!,  were  i. 

.in,  and  w- 

<han  the   pluintirf  chdined  in  1. 
tion . 

48.  A  surveyor's  ori"inal  liook  of  stir- 
.    and    his    j):trol    ^eatunony,    ad- 
mitted by  the  general  court,  in  an  -ic- 
•  t  evi- 
<lence   to   j)if>\e  tha'  ,te    of 

,-y    r-  turned    f>    the    l.tiul 
vas  iorgtd.        JJ'^iin^'t  j. 

4Jj 
\  rand  -1,  a,  <~'. 

Lwation  of  Lands. 

— .   Presumption  -, 
— —  Verdict  6  7. 

KLKCTTOH, 

J.  T!    - 

'.'ii< I,  contracted  by  « 


hond  of  conveyance  to  be 
nor  any    description    \ 

lentifird,     p:Ti'l    t\i  !i-)n'i-    is    not 

admissible  to  show  that  il  \vus  intrmi- 
;  tlie  parties  to  be  laid  (  •' 

p:«!-iicnlar  manner;  and  the  boiul  is 
i'or  mice:-  n  U»e 

prineiple     of    ejection. 


-;<_•  Jjf  Action  J. 
--  C'»urt  of  Chancery  45. 

-  PracUce  2. 

i  \'  i  os\ 
See  Ejectm> 

-  i.iinitation  of  A<:lions  2,  7,  8,  II. 

-  1'o-M-vsior  ;?,  4,  8. 

—  —  Tixsuass  5. 

J.XUOLMF.NT. 
Zee  Bill  of  Sale   1. 

-  Conveyance  4,   5. 

—    Court  of  Chancery  9,    10,   11,  J8. 

-  Kst:»te  "J'ail  8. 

-  Evidence  10,  5G,  61. 

-  lii<.|>fximiis  1. 

—  -  J.  ea.se  ;uul  Ke  lease. 

}  NTR1ES. 

,J,  46,  56. 
---  Presumption  2. 

F.NTRY. 

1.  A  persoji  out  of  possession  fpr^nore 
than  twenty  j  cars,  where  there  i* 
not  .in  adversary  possession  in  virtue 
of  rijjht  or  by  actual  enclosures,  bis 
l.eir,  or  person  cl.iiming  under  linn, 
may  bring1  an  ejectment  without  :;n 
actual  entry  ii«to  the  luiul.  Jfi.>  . 
(I  itl.  7^»'<"  r.  /I-.-,.  '.'(.',/, 

See  Confiscation  2,  4,  - 

—  —  Kscheut  7. 

-  Oflice  Found  1. 

KXURE. 


—  Vendor  and  Vendee  1  . 

ITAIU.F.  ASSIGNMENT. 
ourt  of  Chancery  5. 

1  Cll     T  UBLK    i:STATB. 

1.  Where  a  person,  having  the  equita- 
bh-    intrrest,    is  ill   possession  of  t  in- 
land,   yet   if  his  equitable   in'e: 

fiot  known,  it  will  not  pn  v.-.ii,   it  es- 
UlMished,  over    the  k  COm- 

iii-  '  ,uent  to  the  equitable 

interest.  Jt'irnn.  ,>n  v  A'/,.'.,.. 

2.  A  contract  for  th<-  purchase  of  land, 
boiin  JiHr   made    for  eon- 

,  >  cat*  lUe  ccjmtabk  inlcrgst 


1NBTES. 


033 


Jrt  the  vendee  from  the  time  of  t!*c 
execution  of  the  contract,  ultliotigh 
the  money  is  not  paid  at  that  time. 
When  the  money  i.s  paid,  the  vendee 
.is  entitled  to  a  conveyance.  A  judg- 
ment obtained  l>y  a  third  person  a- 
gainst  the  vendor,  mcsne  the  making 
the  contract  and  the  p:«\  inent  of  tbe 
money,  cannot  defeat  the  equitable 
interest  thus  acquired,  nor  is  it  a  lien 
on  the  land  toatl'cct  the  right  of  snclv 
k&ttyi  jjttt  trust.  Hompzon  v  Edekii)  64 

3.  An  equitable  estate  in  tlie  defendant 
to  lands,  will  not  prevent  a  recovery 
against  him  in  :in  action  of  ejectment 
brought  by  a  person  having  the  legul 
title.  Saunders,  et  uj;  .  v  S-imjjwn,  el  ux. 

is-1,  fnolej 

4.  By  the  acts  of  cwifis.c'ation,  the  equi- 
table interests  of  British  subjects  in 
lands   in  this   state,   were  confiscated 
without  office  f'Hind,  or  entry,,  or  other 
act  done*  and  although  sucb  equitable 
interests  were  not  discovered    until 
long1  after  the   treaty    of   peace   be- 
tween Great-Britain  and  the   United 
States.  Smith,  et  ul.  v  Tht  State,   471 

See  Kjectment  25T  40. 

-  Kieri  Facias  -I,  5,  6. 
.  -  (irant'2^,  26. 

-  Judgment  S. 

-  -  Proprietary  4., 

-  Trust  &.  Trustee  2r  3. 

-  Vendor  &,  Vendee  '.• 

EQUITY. 

See  Court  of  Chancery. 

EQUITY  OF   REDEMPTION, 

1.  Where  an  absolute  deed  of  convey- 
ance of  la-ncl  and  personal  property 
was  held  to  be  intended  to  secure  the 
payment  of  a  debt,  and  the  part  y  per- 
mitted to  redeem,  Stc.  See  COURT  OF 
("iiiKuEHY  20,  and 
Brogdcn  v  Walker's  Ex'r.  &c.  235 

See  Court  of  Chancery  3f  %Q. 

—  —  Mortgage  2,  3,  5,  6. 


See  Writ 


KRKOK, 

Error. 


ESCHEAT. 

1.  If  the  heirs  of  J  S,  itv  whom  was 
the  title  to  a  tract  of  land,  were  to- 
ying in  (rrcat  Britain  at  the  passage 
of  the  acts  of  confiscation,  then  :m 
escheat  warrant  issued  to  E  N  for  the 
same  land,  issued  without  authority 
of  law;  but  a  grant  to  him  for  the 
land  surveyed  under  that  warrant, 
came  within  the  provisions  of  the 


8th  sect,  of  the  act  of  Nor.  1781,  eft, 
20.     Owings  v  Norwood's  Lestee,     96 

2.   Such  grant  is  valid  to  pass  the 

land  tr>  E  N,  notwithstanding;  he  bud 
not  paid  more  than  two  thirds  of  the 
appraised  value  of  the  land.  Jt>, 

3.  l.ands  liable  to- confiscation,  may  be; 
granted    by  tha   state,  under  an  es- 
eheat  warrant.  lb. 

4.   Such    escheat  grant  will  ope- 
rate by  relation  so  as  to  give   title 
from  tue   date  of  the  wan-ant  of  es- 
cheat, lb. 

5.    The   8'th    sect,    of  the   act   of 

JVotf.  17S1,  eft.  2",   secured  the  land 
so  escheated  to  the  party,  on  his  pay- 
ing two  thirds  of  the  value.  lb. 

6.  Where  the   court   would  not  direct 
the  j-ury  that  the  pluintilF's  cschc.it> 
grunt  did  not    pass  the  land,    the  de- 
fendant claiming  the  same   under  a 
defective  title.  lb. 

7.  Lands   escheated  to  the  state   vests 
•without  office  found  or  an  actual  en- 
try.    Hall  v   (jitlings  Jun'rs  JLf3fftcr 

112 

8.  The  act  of  confiscation  vested  the 
seizin    and    possession    of    all    lands 
liable  to  confiscation    in  the   commis- 
sioners,  on   behalf  of  the   state,  and 
divested  the  possession  of  all  other 
persons.  lb, 

9.  If   lands,     liable    to    escheat,     arc; 
included    in   a   certificate   of  survey 
and  grant   under  an  escheat    warrant 
on  another  tract  of  land,  such  gran*: 
will  operate  to  convey  a  good  title  to 
the    land    so    included,   if   there  has 
been  possession  for  more  than  twenty 
years,  &c.  lb.    115 

10.  Land  not  liable  to  escheat  at  tins 
time  it  was  included  in  a  grant  on  a 
survey  made  in  virtue  of  an    escheat 
warrant  on  another  tract  of  land,  but 
which    afterwards    became    escheat, 
will  not  pass  under  such  grant,  and 
the  state  is  i«>t  estopped  from  grant- 
ing it  to  any  other  person.  lb. 

11.  An    escheat    grant    relates    to    the 
original  grant,  llali  v  Gillixgs  Jun'rs. 
Iscxsee,  115,  117 
Howard  v  Moak  et  al.  Le.t!>ter  260,  263 

12.  An  tscheat  grant  operates  to  pass 
the  whole  of  the  original  tract   es- 
cheated. If?. 

13.  The  jury  were  directed,  on  certain 
evidence    of  title   and   descent,    that 
land  which  had   been    granted  as  es- 
cheat land    was  not  liable  to   be  es- 
cheated.    JIalli-  Gittiiigs  Jun'rs.  Lex- 
see,  122 

It.  Land  is  not   eschentable  us  lor  a-  as 


B3G 


1M)K\. 


there  arc  heirs  of  the  orit,'inil  tenant 
or  g<  74. 

;•  is  thit  posMhiliU  ofii 

>.i    the 
of  the 

-.mtee,  and  he  cannot  groit 
,,-.iin   nut i:  .1  hap- 

Jb 

1    .    V-i   escheat    grant   is  primu 
evidence   of  title;    but   being  a    pre- 
sumption of  right,  it  only  c\ists  until 
the  contrary  is  proved.  Ib.  1-5. 

SLC  Grant 89, 30, 31,  37,38. 

ESCROW. 
See  Non  Est  1'actum. 

ESTATE  TAIL. 

1.    A,  fiy  his  will   de\ise.d  as  follows:   "I 
and  devise  to  my  son  If  I.  all  that 
laod  called"  <ic.  "to  him  an<l  his  heirs 
for  ever,  together  with  the  lands  there- 
to adjoining;  and  in  cn-e  In-  dies  with- 
o-ii  ln-ir-;,  to  my  son  J  L  and  the  !••  ir; 
of  his  L'ody  lawfully  begotten."     Thii 
atcd   an  estate  tail  in   H  I., 
the  dcviace.    f^ciidlcrv  Young's  Lessen. 

69 

\T  the  art  of  3' 
temnt   in  tail   may  defeat  the 
tail  altogether,  or  convey  only  a  limit- 
t  1  or  <|.i*lifi"d  estate.      A  common 
deed  of  bar.cpiin  and  sd<-  <>•'•  "-:ites  to 
convey  th«  estate,  and  ve^t  a  fee  sim- 
ple in  the  grantee.  fb- 

3.  — —  Ff  a  limited  interest  is  COT 

by  a  tenant  in  tail,  upon  the  expira- 
t;on  of  the  particular  intnvst,  the  te- 
nant iit  tail  ajriin  takes  the  estate  tail 
as  originally  held.  Ib. 

4.  A  le:nc  for  sevx-n  yeai-s,  m:ide  hy  a  te- 
nant in  tail,  will  have  the  effect  to 

•  •state  for  the  term  therein 
cxpr  Ib. 

5.  A  mortage  mado  hy  a  »cnant  in  tail 

•  .(•  estate  tail  for  a  limited 

tim.^.      If  the  money  is  paid,  the  old 

ite  is  revived.  Ib. 

6.  An  estate  t-rl  cannot  he  devised  un- 
der then.-'  of  Vov.  17  •        /•'• 

7.  I  he  following   words  in  the    .' 

"•-•'-  of  bnd.i 

mt,  after  vesting  a  life  estate  in  K 
P,  "an  1  frf>m  and  after  IIT    de 
tlint  T  P,  and  //-A    '  .   shall 

hive  and  possess  the  said  land-  and 

•  ' 

T  P',  tint'1!    ii-ifhuut  Iti'i-fiil  /'s'./«%  the 

rt  to  and  !>e  vest- 

•;    I',  and  h'tr  hrin,  for 

• 
i  u  reversion  in  fetto 


II  P.  ->r!!t  d  MX.  v  M 

ft  <'l. 

S.   The  court  of  chancery  cannot  i! 
that  a  det 
by  a  tenant   in  tail,  iijuy  >;• 

the  expiration  of  the  time  Ihnit- 

vd  ii\  l^'.v  tv.rthe  recordmr ofdreda — 

an  estate  t:iil  not  be:!)),'  within  the  pio- 

*.  of  17tSJ,  </i.  7J, .-.  1 1. 

9.  T  T  hy  his  will,  dated  in  1795,  dt- vis- 
ed Ins  Lri'!-.  t»  be  equally  divided  be- 
tween  his  two  nephew-  U   <     ind  \V 
S,  to   them   and  their  he; 
and  in  e-.i-«-   \\'  c  .!i-.l   \v  ' 

.  then  lie    !  iiult'of  t!ic 

land*  to  hi-*  nephew  («  S,  i.>  niiu  -mt 
his  heirs  forever.  //•///,  us  to  a  moie- 
ty of  the.  lands  devise  1  to  \V  C,  that 
on  his  death  without  lawful  issu*-  the 
Mil  !».  ram.-  extinct,  and  the  li- 
i?ii::iti'>M  o"  '  -  fok  ctfert,  and 

one  moiety  of  the  la.p<  >  f.i.ii 

in  fc^:  simple.     Smith  et  ul.   r 
etal.  3U 

1  '.    I  he   art  of  ! 

!,  and 

for  transmit tiit^  the   tenancy  in 
the  issu-:  of  the  tenan',    ii  alter 
chnnjfd  only  hy  making1  the  land  dc- 
scendiblii  to  all   tlr^  ciiildren  of  the 
tenant  intail,  and  their  respective  is- 
sue iiulefinilely.  Jh. 

II.  R  H  by  his  will  devised  to  !i 
('  H  the  free  use  of  his  land  called, 
See.  rluring  hit  nuturul  I  iff,  and  aftei- 
the  death  of  his  son,  he  devised  the 
land  unto  the  heirs  of  his  son  C  M. 
lawfully  he-gotten  of  his  body,  for 
erer,  and  for  the  want  of  such  liein, 
then  over,  ?ic.  //</</  by  the  county 
court,  that  C  H  t<»ok  an  e>tate  intail 
p.-nerd  in  the  land  so  devised  to  him. 
Kt us  £•?  fltrwt  v  Gt)ld*Lorougk'»  Latee, 

/S«  Acts  of  A*»embly  6. 
— -  Conveyance  I,  2. 

Devise  I. 

.  Proprietary  I,  5,  6. 

I.«JTATE  VESTED. 

Set  Vested  Estate. 

K5IOPPELL. 
Acts  1.2. 

Assmnpsit  I. 

— —  Cause  of  Action  I. 

Escheat  10. 

< Irani  1J,  :H  . 

Location  of  Lands  9,  13. 

— —  Practice  - . 

Vendor  !i  Vendee, 


INDEX. 


EVIDENCE. 

1.  On  the  plea  of  no  asset-*  of  pkne.  ad- 
minintracU,  the  onus  jiroliiuuli  lies  on 
the  plaintiff.     Morgan,  v  Uludt  ct  ux. 

38 
Wihon  v  Slade  el  ux.  281 

2.  If  an  executor  or  administrator  ne- 
glects to  return   an   inventory   is  he 
bound  for    all  debts    and    legacies!1 
Qucre.  Ib. 

3.  An  executor  cannot  give  in  evidence 
that   he  had   equally  and  proportion- 
ably,  or  nearly  so,  distributed  the  re- 
sidue of  the  personal  estate  of  his  tes- 
tator, after  payment  of  debis,  among 
the  legatees.     Morgan  v  Sludc  et  MOT. 

38 

4.  Where  an  act  of   assembly  directs 
that  an  auctioneer  shall  give  bond  be- 


12.  The  declarations  of  a  former  holder 
Of  adjoining  lands  as  to  the  bounds  of 
the  land  in  dispute,  admitted  in  cvi. 
deuce,  it  not  appearing  by  the  plots 
in  the  cause  that  he  was  interested. 

76.  121 

13.  The  jury  were  directed,  on  certain 
evidence  of  title  and    descent,  that 
land  which  had  been  granted  as  es- 
cheat land  was  not  escheatable,  altho* 
the  land  had  not  been  claimed  under 
the  original  grantee  for  upwards  of 
100  years.  Ib.  122 

14.  Possession  is  presumptive  evidence 
of  right,  and  a    defendant  in  eject- 
ment cannot  be  deprived  of  his  pos- 
session by  any  person  but  the  right- 
ful owner  of  the  land — that  is,  he  who 
hath  \\\c  jus  jxisscssianis .  Ib. 


fore  he  obtains  a  license,  if  the  fact  15.  An  escheat  grant  is prima  facie  evi- 
dence of  title}  but  being  a  presump- 
tion of  right,  it  only  exists  until  the 
contrary  is  proved,  Jb. 

16.  A  deed  located  on  the  plots  in  the 
cause,  and  not  counterloeated  by  the 
opposite   party,  may  be  read  in  evi- 
dence by  the    party  locating    it,  to 
show   how  it  is  located;  but  when  its 
validity  comes  in  question,  if  it  is  a 
defective  deed,  it  is   to  have   no   ef- 
fect.   Hammond  et  al.  Lessee  v  Nvrrit;, 

130 

17.  The  clerk  of  a  court  has  no  autho- 
rity by  law  to  certify  a  fad  under  the 
seal  of  the  court.  His  duty  is  to  grant 
exemplifications.  Ib.  131 

18.  Parol  evidence   is  not  admissible  to 
prove  that  a  tract  of  Ian:I,  mentioned 
in  a  certificate  of  survey,  never  wa* 
actually  surveyed  under  the  warrant 
which  issued  for  that  purpose.  76. 1^2 

19.  Parol  evidence  as  to  the  law,  practice, 
and  usages  of  the  land  office,  respect- 
ing the  proprietary  instructions,  dif- 
ferent kinds  of  warrants  and  their  ef- 
fects, certificates  of  surveys  and  re- 
surveys,  caveats  and  grants,  and  de- 
cisions of  the  judges  of  the  land  of- 
fice,   admitted  in   evidence  in  an  ac- 
tion of  ejectment,  with  the   consent 
of  the  parties.  Ib.  132 

20.  The  rules  of  the  land  office  cannot 
be   proved  by  witnesses.     They  are 
(o  be  found  on  the  records  of  the  of- 
fice, and  in  the   proclamations  of  tlte 
proprietary.      Hammond  ct  al.  Lessee 

V  ll'arfiel'f,  151 

21.  Opinions  as  to  the  rules  of  the  land 
office  cannot  be  received  as  evidence. 


was  that  tile  license  was  obtained 
prior  to  the  execution  of  the  bond,  it 
is  capable  of  proof.  M'Mcc/ienv  T/ie 
Mayor,  &c.  41 

5.  Parol    evidence    admitted    to    prove 
that  the  land  granted  to  the  husband 
of  the  demandant  is  the  same  land  of 
•which  dower  is  demanded.     Ke?j'rr  v 
Young,  53 

6.  Parol  evidence  admitted  to  prove, 
that  a   debt  secured  by  a   mortgage 
was   continental     money,    a'tho'    ex- 
pressed to  be  a  specie  debt.      Worth* 
ini;ti»i  t>  Bichndl,  58 

7.  Where  there  is  a  mortgage   with  a 
covenant  by   the  mortgagor  that   he 
will  pay  the  money,  and   he  assigns 
his  equity  of  redemption,  is  he  a  com- 
petent  witness  for    the  assignee   to 
prove  that  the  money  loaned  was  con- 
tinental money?  Ib. 

8.  Unless  the  contrary  is  proved,  it  is 
presumptive   evidence   that   a   clerk 
\vlio  is  dead   and  who   made   certain 
entries  on  the  books  of  his  employer, 
delivered     the.    goods     as    charged.^ 
Clarke  v  M'igruihr  et  ul.  77 

9.  A  memorandum   made  by  a  clerk  in 
the  record  of  a  deed  stating  that  the 
date  of  the   deed  had    been  altered, 
&.c.  is  not  evidence,  being  an  act  done 
without  authority,  and  will  not  invali- 
date the  deed.     Outings  v  Norwood's 
Lessee,  96 

10.  Ancient  deeds  of  lease  and  release 
not  required  to  be  enrolled  may  be 
read  in  evidence.  Ib.  106 

11.  If  the  testimony  of  a  witness  is  in- 
tended to  be  objected  to  because  of 
his  hol.ling  adjoining   land,  his  inte- 
rest must  be  located  on  the   plots. 
ffatl  v  Gittlnga  Jr>s.  Lease,  1-0 

VOL.  ii.  68 


23.  The  usage  anil  practice  of  the  land 
office  du>t  be  proved  by  the  adjudi- 


93d 


INJjKX. 


cations  of  tlie  judpff  j  of  th*t  office^ 
and  not  by  the  opinions  of  \vi 
as   to  what   tli.it  usa^e  and   practice 
may  be.  fit. 

£3.  To  entitle  the   pirty  m>t  seized  of 
the  original  tract  of  Ian  1  U>  t!: 
tion  of  liis  i,-r.<iit  to  the  certificate  ef 
resurvey  for  the  vacant  laud  included 
therein,  he  must  prove  tint  his  certi- 
ficate was  returned  to  an  1  in  tl; 
office  at  the  time  the  junior  survey 
\ude.     H.tinmoirl  ct  a!,  v 


24.  A  deed  for  a  certain  number  of  *• 

cre>  of  land,  (beinjf  part  of  a  tract,) 

without  metes  or  bounds,  but   refer- 

ring to  another  deed  (not  produced,) 

.  is  not  leg.il  evi- 

dence to  show  title,  or  to  support  the 
locution  of  the  same  on  the  pli>ts  in 
the  cause,  without  producing-  the 
deed  to  wliich  it  n  ••' 

-  >.  Where  certain  facts  »ni!  circumstan- 
ces were  not  a  : 

to  prove  that  a  deed  recited  in  ano- 
ther deed  li^J  been  executed. 

/b.  U7. 

26.  The  time  when  a  certi:. 

A  as  returned  to  the  ! 
»  matter  of  fact   determin.iblc  b\    t'ic 
iurv.   lla/um'Mid  et  al.  Lessee  v    ll'tr- 

159. 

27.  Certain  facts  and  circumstances  not 
permitted  to  he  given  in  evidence  to 
j'l-ove    at    what   time  a   certificate    of 
survey   was  relumed   to  the  Ian  1    of- 
fice. Ik 

23.  The  actings  and  doings  of  a  person 
under  •••  hoin  thtf  party  does  not  claim 
in  an  action  of  ejectment,  not  permit- 
ted u>  be  given  in  evi  K-nce.  1L. 

29.  1'ar  >1  evidence  not  admitted  to 
prove  that  a  deed  of  nunumission  un- 
der the  act  of  1752,  ch  !,  s  5,  was 
attested  in  the  presence  of  two  wit- 
nesses. ffegro  Jamet  v  Cfatfher,  176. 

CO.  Whether  or  not  tlie  counsel  of  the 
plaintiff  U  bound  tO  ansm-r  wlifther 
or  not  lie  h-is  in  po<---.-ion  certain  let- 
ter* written  by  the  d-.-fi-ndant  to  the 
plaintifT  relative  to  the  subject  in  di-- 
pute.  M. 

31.  As  to  what  is  lesral  evidence  of  a 
sale  made  at  auction—  The  entries 
ma  Ir^  l>y  a  clerk  to  the  auctioneers 
are  not  the  best  evidence.  V>. 

'  ,rol  evidence  admitted  to  prove 
the  manner  in  which  wilU  are  nnde 
»nd  proved  in  France.  J)c  .W/rv  v  Trr. 
r\'r,  191 

\  f-opy  of  a  will,  executed  \s\ 
dclp/ua,  an  1  ininsmiltcd  by  the  testa- 


tor t  ;  by  a  no- 

i  it  isl-in  1.  and  :• 
cd  undt-ra  coin  n  -- »,i   is,i|,'(!  t 

i  xhentirat- 

cd    by  Inning  tin-    c  ol"  the 

rY..  t'  e.ilo  .-,    that   it    is  the 

.'lire    of  t!i  in  1    which, 

with  the  tcstiiir  isnta- 

ry  executor,  returned  under  the  com- 
•n,    is  s'llVu-i'-ii'dy   pn>vi-«!, 
ne  n-a-1  i;i  evidence.  Ib. 

ol.    Proof  of  tlie    /V(;.v/i   laws  in 
meutary    airnir^. 

a  commission  to  take  testimony,  and 
ad:nhu-d  \\\  eri  ::  Ib. 

o5.   '!'!•  h  »wing   thj    seal  of  a 

court  of  our  ow\<  p  court 

of  the  state,  is  :i  ntira- 

tion  of  th  •  ''u   court  it 

t:fy.  7V 

36-    Th1.'  s:':d    of(!it-    court  of  a  t. 

country  diu-^    n«,t  pi  <;it  it 

tun-  Ib. 

3T.  l':,ri>l  ,  •.  :  to    prove 

the  seal  of  the  co-jrtofu  {•>. 
try. 
38.   vVl,;-r-    ^  fji|;-<tion 

tally  t.r  CMilaternlly    '  ourt, 

- 1  ne  itrie: : 
til'-  ad  nis-i,'i;i  of  '-\  \  1 
served  as  if  the   (jueslion  was  u 
in  i-  /';.  219 

C  laws  of  a  foreign  country  are  to 
be  proved  hy  cvi.!.- •> 
are  to  decide  what  is  p;-o;>er  evidenco 
i.l    to  c-Mistrne  them, 
anrdjudpe  of  tlr-ir  applicability  to  the 
'jurt  Jb. 

«W.  The    leK'-rs  ol'a    witness  per;nitu-d 
to  be  read  in  evidence  to  impeach 
the  credit  of  the  wr 
he   had  sworn  upon   his  e\:iminatioa 
t.ikcii  under  a  rcMTimis  .ion,  coir 
tory  to  the  contents  of  (li- 
mit to  prove  am  o'liM-  f.ict.     Ib.  220 
41.    If  a  contract  is  liy  parol,    til-   party 
is  at  liberty    1  . 

prove  the    inti-nti.-m  of  tlie  par' 
to  wlien-   it  w:\st-)  be  executed.        Ifi. 
I?.    It  tlie    plainiifF  in  an    actiot 

• '!••«/  files  an  account  in  e  >urt  eon- 
t.iinin^  the  items  of  liis  chiin  a^ains* 
the  diT-ii  liTii,  IK-  i^  pr=rlud--d  from 
g<iin^  into  cvidcnc'-  to  establish  his 
claim  in  a  manner  di<Veren»  from  that 
in  which  he  Ins  rl.-eted  '>•  liis  ac- 
count to  consider  the  defendant  liis 
de'>' 

43.  In  an  action  of  drVt  upon  a  icuardi- 
anV  Imn,!  dit.-d  in  '7'»7,  the  plaintifl" 
proved  by  i  witross,  that  Una  of  the. 
plaintiff  wasjduhm;  (us  minority, rent- 


INDEX. 


ed  by  the  defendant,  to  the  witness, 
in  l~yi,  and  that  the  rent  was  after- 
Wards  lessened,  in  consequence  of  an 
agreement  between  them  that  the 
Witness  shqujd  take  charge  of  the 
defendant's  stock  upon  the  land. 
JIt.fi/,  that  such  evidence  was  in-.ulu.is- 
sible.  U unity  v  Selby.  244. 

44.  A  copy  of  a  paper  purporting  to  bo 
an  additional  inventory  to  the  inven- 
tor}- of  the  estate  or  the  deceased, 
Certified  under  the  hand  and  seal  of 
the  register  of  wills  to  be  a  true  copy 
taken  from  the  original  additional  in- 
ventory offered,  (not  proved.)  by  the 
nduiinistrutor,  and  lodged  in  the  of- 
fice of  the  register,  was  held  to  be  in- 
competent evidence  to  charge  the  ad- 
ministrator with  the  amount  of  the 
goods  and  chattels  therein  mention- 
ed. Emory's  Jldm'r.  D.  jtJ.  A.  v 
Thompton'a  ±lxjx.  244 

45.  An  original  pa;;er  purporting  to  be 
an  f'udditional  inventory  to  the  inven- 
tory of  the  deceased,  offered  by  the 
admir.irftrator,"  proved  to  be  in  the 
Land  writing  of  a  person  who  acted 
as  a  clerk  for  the  administrator,  and 
endorsed  "additional  inventor}-,"  in 
the  hand  writing  of  the  administrator, 
found  among  the  papers  in  the  office 
of  the  register  of  wills,  wrapped  up 
in  the  original  inventory  of  the  estate 
of  the  deceased,  was  held  to  be  com- 
petent evidence  to  charge  the  admin- 
istrator with  the  several  sums  of  mo- 
ney specified  in  tliK  said  paper,  as 
part  of  the  goods  and  chattels  of  the 
deceased.  Hi. 

46.  In  an  action  of  ejectment  brought 
by  the  lessee  of  *,he  ftstry  of  a  Parish, 
the  plaintiff  offered  to  read  in  evi- 
dence certain  entries  in  a  book,  pur- 
porting' to  be,  and  proved  by  a  wit- 
ness, who  WLIS  formeriy  register  of  the 
vestry,  to  be  handed  down  to  him  as 
the  vestry  book  of  the  parish — Held, 
that  the  testimony  was  improper,  and 
ought  not  to  be  read  in  evidence. 
Atcrtin  and  Smith  v  Gunby  et  al.  LC.K- 

<17.  A  private  plot  of  the  lands  in  dis- 
pute permitted,  under  certain  circum- 
stances, to  be  read  in  evidence.  How- 
ard v  Aloak  et  a{.  Lesree,  268 

48.  A  deposition  t;>ken  on  the  survey, 
of  a  witness,  who  was  absent  out  of 
the  state  at  the  time  ofUie  trial,  was 
permitted  to  be  read  in  evidence,  due 
diligence  having  been  used  to  procure 
the  attendance  of  the  witness. 

Jb.  272 

jp,  YVIiere  the  facts  offered  in  evidence 


by  the  plaintiff  were  not  sufficient 
and  legal  evidence  to  warrant  the  ju- 
ry m  finding  that  a  person,  under 
whom  he  claimed,  died  seized  of  the 
land  for  which  the  ejectment  was 
brought,  in  opposition  to  (JO  years  pos- 
session oi'thc  defendant — the  strong- 
est presumption  of  a  good  title  being 
in  favour  or  the  defendant.  David's 
Lf'itxc  v  J lupin's  htirf,  293 

50.  Kvidcnce  taken  in  a  former   suit  in 
chancery  between   the  same   parties 
for  the   saiii'j  relief!,    and   which  suit 
was  dismissed    by    the   complainant, 
may  be  read  in  evidence    by  the  de- 
fendants on  the   hearing  of  the  new- 
suit.     Jn'jjfiiiis  v  Stump  d  al.         301 

51.  \n  (iteumpsU  for  work  and  labour^ 
the  act  of  limitations  was  pleaded — 
Held,    thtJ,  evidence  of  an  acknow- 
ledgment by   the  defendant  that  the 
plaintiff    had    performed    work    for 
him,  but  that  he  had  an  account  in 
bar,   and  when  a  person,    who   was 
then  up  the  bay  should  come  to  town; 
he  would  have  the  business  settled, 
was  sufficient  to  bar  the  act  of  limi- 
tations.    Pot  v  Conuwy's  JLd'r.      307 

52.  A   receipt  given  by  the  plaintiff's 
attorney  for  a  sum  of  money  stated  to 
be  in  full  of  a  judgment,  is  not  con- 
clusive evidence  that  the  judgment; 
is  satisfied   EO  far  as  to  prevent  the 
plaintiff  from  taking  out  an   execu- 
tion for  any  balance  which   may  be 
actually  due' thereon.  Hughes  v  O'jDon* 
nell,  324 

53.  In  an  action,  of  trespass  q.  c.  f.  the 
plaintiff  offered  to  prove  that  he  was 
in  possession  of  the  land  on  which, 
&c.  and  that  the  defendant  committed 
the  trespass  complained  of   on    the 
land  sp  in  the  possession  o.f  the  plain- 
tiff, at  the  place  by  him  located  on 
the  plots  in  the  cause — llfld,  that  such 
evidence  was  admissible,     lioginire, 
ct  a  I.  vM'Coy,  351 

54.  The  plaintiff  proved  by  a  wit- 
ness,  that   he  was   present  v.hen  the 
land  on  Which,  &.c.  was  originally  lo- 
cated or  taken  up,  and  that  the  tract 
was  then  located,  as  it  now  is  on  the 
plots  in  the  cause—  Held,  that  the  evi- 
dence was  adjni -bible.  J5. 

55.  Where  the  docLration  in  an  action 
of  replevin  staled  the  taking  of  the 
goods  ta.  be  in  Gay -fired,  from  the 
dwelling  house  of  th.e  plaintiff—  Held, 
that  evidence  of  the  defendant's  hav- 
ing taken  the  goods  in  Gjy-stnet,  was 
sufficient,   without    prqving  that   he 
took   them  from  the  dwelling  house 
»f  the  plaintiff,  Faget  v 


610 


INDKX. 


56.  A  record   honk    ol  nunty 
court,  containing  the    certificate   anil 
affidavit  of  a   purlin    17i»V,  that    ho. 
had  in  16H',  in  X<iint  Mury'i  county, 
married   u  n-.^n>   man  named   I,  K,  to 
u  white  woni.in    naitu  d  K  S,  Imtli  ->.r- 
vants  of  VV  K — an   affidavit  of  a  per- 
son   who   was    present  at    the    inar- 

proving  the  sa'ne,  as  al-o 
the  issue  by  that  marriage,  and 
an  entry  from  a  parish  rcgisti  r  of 
the  bttcr  county,  stating  that  the 
above  were  therein  recorded  in  1702, 
and  the  whole  recorded  in  the  above  re- 
cord book  in  170.3 — The  entry  t!u-i ••  nf 
in  the  record  book,  (there  being  proof 
of  the  loss  of  the  originals  and  of  the 
parish  register,)  was  oflered  in  evi- 
dence in  a  petition  for  freedom,  b\  a 
person  claiming1  as  a  descendant  from 
E  S,  to  prove  the  existence  of  a  frc-e. 
white  woman  named  K  S  in  the  fami- 
ly of  W  K,  her  marriage,  and  the  is- 
sue by  that  marriage — ll>  Id,  that  the 
entry  OH  the  record  book  was  compe- 
tent and  admissible  evidence.  -N 
vCofiff!,  360 

57.  A  F  by  his  will,  devised  to  f 

A  M,  all  his  real  estate,  to  be  sold  by 
them  for  the-  payment  of  his  debts. 
Evidence  of  a  sale  made  at  auction  by 
them  to  VV  li,  of  a  part  of  the  « 
together  with  a  memorandum  of  the 
sale  subscribed  by  the  auctioneer,  and 
»  receipt  given  by  them  for  the  pur- 
chase money — l!'U\r\  be  admissible 
and  competent  to  show  a  title  at  law 
in  \V  ('.,  without  ;•  deed  of  bargain 
and  sale,  or  oilier  convex  ance  to  him 
from  tin-  trustees,  and  to  he  sufficient 
to  enable  his  lessee  to  recover  such 
rea*  estate  in  an  action  of  ejectment. 
•  Zi  ll(jin  v  Guldjiburuugh'a  l*s~ 
«<*,  569 

33.  The  not  returning  an  inventory  on 
the.  estate  of  the  deceased  b\  his  ad- 
jniniMrator,  is  not  sufficient  evidence 
to  charge  -the  administrator  with  a 
debt  of  tlie  intestate.  Lctkt't  adm . 
v  Beanw,  .573 

5V.  To  establish  an  account  in  bar  claim- 
ing a  discount  in  the  name  of  !•'  H, 
the  principal  in  a  bond  given  to  a 
trustee  for  the  sale  of  a  real  estate, 
and  on  which  action  wan  brought  a- 
fp«in«rt,  his  surety,  the  defendant  offer- 
ed to  read  a  copy  imd<  i  MM  I  of  a  dc- 
tret  of  the  court  of  chancery,  for  the 
•ale  of  thv  rntate  of  J  K,  and  lh<-  ap- 
pointment of  the  plaintiff  tn:- 
makc  the  -ul( ,  and  the  ' 
port  of  U»e  s»le,  and  ratification  by  the 


chancellor,    together  \\ith    t>ip   s\j»li- 

tor's  statement  and  ratification  there- 

•iwini;  the  pr'>|x>rlion  due  to  tin: 

creditors   and    among-  others,  of   the 

bum  due    to  F    II    alio\e    inn  . -d,    and 

claimed  to  be  .:ct  off—  Jle/il,  that  such 

.-  c-   vis  niiuliiiissiole.       (jiiiitt  P 

'•'ni'r. 

60.   In    the  s.mie  action,  the  plain- 

tifl'toshow  lhat   F    I'.  ,  i'lcd 

to  the  proportion  adjudged  to  him  out 

of  tile  pfi'Meds  (if  :  hi  It  :d  CSt 
.1  1..  and  to  pro'e  that  F  H  w:»b  one 
of  the  sureties  in  the  adiinnistrution 
of  the  personal  estate  of  J  i.,  and  that 
it  had  been  mis-ipplv -d,  and  i.ot  legal- 
ly adir.inistered,  oflered  in  tv'uUiice 
the  administration  bond,  and  an  ac- 
count signed  by  F  1!,  for  the  adn.ni;-- 
tratrix — //./</,  that  the  evidence  was 
not  admissible.  ll>-  376 

61.  If  the  possession  of  land  has   gone 
agreeably  t'>   an  aiicient   deed  which 
needed  no  enrolment,  the  infjicjrimiti 
of  the  dee<l  muy  be  read  i' 

an  1  ii  pfi'.  rtiud  to  ;^-s  the  laiul.   J!'.  'I 

3K(J 

62.  \\  here  a  d«ed  for  part  of  a  tract  of 
land   has  not   been   particular!) 

ed  on  the  plots  in  the  cause,  it  may 
be  rend  in  evidence  if  the  whole  tnirt 
is  united  in  the  same  person,  and  tiie 
whole  has  been  loc..  11. 

63.  \fcine  covert,  one  of  the  grantors  in 
a  deed  r.nnvejing  a  tract  of  bud,  the 
acknoudengment  of    which    by  her, 
having  been  declared  to  he  iK  t 

was  admitted  to  -ive  evidence  on  the 
part  of  the  defi-ndant  in  an  net  ion  of 
pjectiii'-ut  -brouglit  for  the  same  laml 
bv  a  person  claiming  under  lu-r  deed. 
>'6,  (r.ottj 

64.  The  declarations  of  a  <lcceased  per- 
MHI.  then  seized  of  a  particul.r, 

of  land  not  located  on  the  plots  in  th» 

cause,  were    oll'ered  in    evidence   by 

the  defendant  in   an  action  u< 

incut,  to  prove  the  end  of  the  first  line" 

of  that  tract,  which  wa-  the  !><-K 

Of  the  land  claimed  and  located 

plots   by   the    defendant — Hilil,   that 

the   declunitioi: 

in  «•  vvli-in  i-.  Jb. 

65.  Where  a  person  acted  in    the   cha- 
1   racter  of  a  justice  <it  .  altho' 

he  did   not  30   n\  |o  hltiiself,   yet  it   i» 
prima  J/icif  evidence   tliat  lie  ! 
thority  to  act  as  .«uch.   ti> 
hr,     '  Si6 

\'hat  u  alleged  as  a  motive  or  in- 
ducement ii.  ti  dc  by 
a  witness,  mav  be  rcuJ  in 

lit.  3SU 


INDEX. 


67.  The  minutes  of  the  proceedings  of 
a  irotary  public  of  a  foreign  country 
art  to  be  considered  HS  records  under 
the  cvirtcsy  of  nations;  and  a  copy,  un- 
der tin-  lumd  and  notarial  seal  of  a  no- 
tary, is  sufKcicht  evidence  of  the  pro- 
test of  it  foreign  bill  of  exchange. 

Jb.  399 

68.  Where  a  person  was  frequently  seen 
in  the  counting  house  of  the  plaintiff 
transacting  business   as   a    principal, 
and  was  generally  supposed,   believ- 
ed and  understood,  in  the  town,  to  be 
a  partner  in  the  house  of  the  plaintiff, 
— held,    not    sufficient    evidence    to 
prove  that  such  person  was  a  partner 
of  the  house  of  the  plaintiff.      Jb.  400 

69.  The  admissions  bj    counsel  of  cer- 
tain facts  stated  in  a  special  verdict, 
taken  at  a  former  trial  between  the 
same   parties  in  the  sahie  action,   are 
not  evidence  upon  a  new  trial  between 
them.     Homey  v  Gt:ssuif(iyt  402 

70.  If  slaves  remain  in  the  possession  of 
the  vendor,  the   bill  of  sale   must  be 
recorded;  and  whether  they  remained 
in  his  possession,  is  a  matter  of  fact 
for  the  jury:  and  if  the  jury  find  they 
were  not  in  his  'possession,  then  the 
hill  of  sale  is  not  required  to  be  re- 
corded,   ami  it  is  not  evidence,   al- 
though it   has  been  recorded,    unless 
the  execution  of  it  is  proved.   Jb.  403 

71.  '  o  h:y  the  foundation  for  proving  an 
original  deed  lost,   the' evidence  must 
he  given  to  the  court.  Jb.  404,  fnolej 

72.  I'roof  being  made  of  the  loss  of  an 
original  deed  of  Mortgage  of  land  and 
slaves,  dated  in  IV'63,  the  insjtexhhus 
•was  admitted  to  he  read 'as  legal  evi- 
dence, although  the  deed  was  not  re- 
corded in  the  manner   prescribed  by 
law  so  far  as  respected  the  slaves  in 
dispute.  Jb.  407 

73.  v^  here  a  deed  is  lost,  or  not  in  the 
power  of  the  'party  to  produce  it,  it 
is  only  necessary  to  show  an  examined 
copy,   or  prove  the  contents  of  the 
deed.  Ib. 

74.  <_  crtain  facts  refused  to  be  admitted 
in  evidence   to  prove  that  a   person, 
•who  purchased  certain  slaves,  and  had 
made  a  voluntary  gift  of  them,  never 
paid  any  consideration  for  the  slaves. 

Jb.  408 

75.  Certain  acts    ?nd   declarations    of 
the  defendant,  subsequent  to  his  sale 
of  the  slave  for  which  the  Action  of 
replevin  is  brought,    before   his    in- 
solvency,  are  not  evidence  to  defeat 
the  claim  of  the  plaintiff.  Jb. 

76.  An  afli'davit  made  by  a  debtor,  and 
payment  into  the  treasury  under  the 


tender  law,  admitted  in  evidence  to 
prove  the  person  \v:is  indebted  and 
made  the  pajment  into  the  treasury. 

lt>. 

77.  Proceedings  in  chancery  under  an 
insolvent  law,  are  not  evidence  in 
favour  of  the  person  who  had  obtain- 
ed the  benefit  of  that  law,  to  prove 
an  acknowledgment  and  admission  by 
him  on  his  application  for  the  benefit 
of  that  law.  lb> 

7$.  A  bill  in  clmnccry,  with  all  the  pro- 
ceedings and  the  decree  thereon,  can- 
not be  read  in  evidence  in  a  case  be- 
tween different  parties  from  those 
named  in  the  proceedings.  Ib.  *09 

79.  ^n  answer  in  chancery  made  by  the 
respondents  therein,  from  information 
derived  from  the  defendant  in  this 
cause,  is  not  admissible  in  evidence; 
but  the  declarations  of  the  defendant 
are  admissible  evidence,  and  -j.  witness 
may  recur  to  the  answer  to  refresh  his 
memory  as  to  the  declarations  made 
to  him  by' the  defendant.  Jb.  4l6 

8'J.  Declarations  made  by  the  defendant 
before  and  after  his  discharge  under 
an  insolvent  law,  may  be  given  in  evi- 
dence againsit  him.  /£.  4]2 

81.  A  surveyor's  original  book  of  sur- 
veys, and  his  parol  testimony  admit- 
ted by  the  general  court,  in  an  action 
of  ejectment,  as  competent  evidence 
to  prove  that  a  certificate   of  survey, 
returned  to  the  lane!  otfice,  was  forged. 
See  COLIIT  or  CHAKCEIIY,  42,  4'J,  44, 
and 

JJi  Tt  h>«  'i  Le.tscc  v  Singer y,  4  55 

82.  '•  he  proprietary  instructions  of  th« 
30th  of  June  1<69,  requiring  a  sur- 
vey of  reserved  lands  to  be  made,  &c. 
read  in  evidence.  /^ 

83.  The  general  court  refused  to  direct 
the  jury  that  it 'was  not  competent  in 
a  court  of  law  to  give  evidence  to  the 
jury,  or  to  go  into  any  parol  examina- 
tion of  the  surveyor  or  his  books  to 
vacate  a  grant,  or  to  prove  that  tha 
certificate  of  survey  returned  to  the 
tind  office,  as  a  foundation  for  tjie 
grant,  was  forged  or  fraudulent,  and 
not  made  out  by  him  or  his  authority.. 

Jb.  45* 

84 .  Depositions  returned  under  a  com, 
mission  issued  to  Perinsylvate'v  to  take 
testimony  in  the  cause,  was  not  per- 
mitted by  the  general  court  to  be  read 
in  evidence,  it  not  appearing  by  the' 
return  of  Uie  commissioners  that  they 
bad  given  any  notice,  or  tfyat  proper 
notice  had  been  given.  J.6.  459 

35.  Depositions  simiUrlytuken  were  not 
ncnuutsd  to  be  read  L:  uud'.i: '-••.;_.  ^. 


INI 


in    eridenre  "by     the 

-  opposite  party;  concurred  in    by    the 
court  of  »pp  Ib. 

-rt  of  law  admit!'. 
<len>  t    that  a  certificate  of 

MM  V 

:  not  h:iv  f  been  dct  ••: 
(  niv  on  the    ground,  tliht  it  ihi 
certitvMi-    \\is    pn-ved   to  Ix   • 
the  grant    ub'aincd  0:1  it    « 
Jent,  anu  could  not   have    an\    opera- 
m  h;w   to  po.*>   the    hnd   to  the 
grantee  therein.     Singtry  i'  'i .. 

-(t>'iitrct,  -I*,' 

the  fact  of  the  forgery  of  a 

of  surn-v,  urn!,  r  the  grant 

on  which  the  deieiui.ur  claimed,  came 

before  the  court  and  jury  collaterally, 

an  1  \v:ia  not  directly  in  <n.icMion,   the 

i<wtie  beiwi  en  the  p..  ,  who 

li.i-1    the    right,    of  possession    to    the 

land    in    i  .    tin-  verdict    in 

favour  of  ;  ,.it  cannot  be  re- 

\'.t'.<  IK-,   to  prove  that  the 

eel"..'  76. 

88.    1  i:  ;"  pan 

of  a  tract  ot  lai.it  i-Mitraclc.!  by  a 
bond  of  conveyance  to  be 
nor  any  description  wh<  n-!,\  it  run  be 
identified,  pa:-ol  evidence  is  not  ad- 
missible to  show  thwt  it  was  intended 
by  the  parties  to  be  laid  off  in  a  par- 
ticular ma:uv  r;  and  the  bm.d  is  void 
for  uncertainty,  e\ct-pt  on  the  princi- 
ple of  election.  Iluntt  U  Parks  e  GW, 
et  al.  4(J8 

•  ns\ver  in  Chancery  2,  3,  4. 

Bill  (i  -is  2. 

i  .ani-u-y  17,  25. 

. Covenant  ',  3,  •*. 

F.jectmciH  33. 

. ti'rantol, 

. -re. 

. I.r-c.vrjn  of  I.:.n.!i9,  10,  16. 

• Plcoc  Adnitnibtravit  1. 

Presumption. 


« '1  . 

i-FTIONS. 
Sue  Answer  in  (-' !. 

I  M  (  I    (!0\. 

1.  A  receipt  given  by  tli«  phtintiff'n  aU 
ton  none] ,  s;.i'>  <l  i«> 

judgment,   is  not  con- 
.t   tlu-  ju-i 
to  I      rent  the 

::<kil>i|    out    c^|•' 

Uially 

:•    if  1 1 

2.  A  ju«Ujaient  Lu\in^  been 


!  0  his  Mir. 

who  sun  n  :\\  (  . 

landb.       The  adniiniktrutor  o<   * 

amount    ot     Hie  .!<:(!-  ir.ent   lu    H, 
who  c  r<  it.  d  tin  ><  i-ii- 

ihe  ii'.'iiin  • 
ot   ('.      .; 
for  the  use  ot    t] 

for  a  i;ile    of  the   !M  : 

UlisOlu,  CvC.  :.!:•  ••(  tilC 

dittmlunt,  t'ltc.ititd'.   Luiy  r-\. 

508 
<S"pf  Assigr.mr  p.t  1. 

-  J>«H-d   I. 

-  -  Fieri  Facia*. 

-  P:irol  Evidence  6. 

r.xr.cuTOR  n?<  SON  TORT. 

1.  On    the  death  of  a  defendant  in   an 
action   of  debt,  Jkc.  u   summons   may 
issue  to  an  c\«:rutor  lit.  :i  ;.•  li  rl, 
being  no  ]cgft]    i-.\i.cutor  or  :u: 
tralor  of  tl  .>r  U* 
«nd    defend   the   action.     Xurfvlk   v 

ft, 

2.  An  executor  .  .    being  siirr.- 
Mi'.'iicd,  appt-nred  to  :»!i  action  ..I  debt, 
brought    r.gainst   t!i'  .   und 
com. 

the  «lebt  \\:is  due  to  the  plaintiff.    An 

auditor  was  then  appointed  to   ascer- 

tain  the    sum    for    which    judgment 

should  be  rendereii,  i  ^  hud 

to   ti  10  the 

art  .  : 

This  appointment  of  uu-.: 

U-nvards  j-tricki'ii  out  !>y  tl.e   county 

court,  and  :•.  ji'.!;;iiH'nt  \v:is  rendei'eil 

on    tiie    conlV.-..,.  .oned 

for  the  debt  an.! 

m,  fi  >i">i  tit  km  i*  jr 

Krrf.r  b«.  ing  brought,   tl,c 

b)   the  cct.it  ot  ap, 


l.\r.<TTn;;   PRO   FORMA. 
See  Kxccuion.  &  Adnui.istrator*  o,  4. 

n:.  \TORS. 

1.  It'  an  executor  or  a...  :  neg- 

.    an    im  «  i 

tKHind 

•t  r  Stadc,  i 

2.  An  c-xccufor  cannot  give  ;n  cvi 
that  !.  ...,d  prupof 
bl\,  «  d   tin-  n  si- 
due  ' 

tator  nong 

the  several  legatees.     Jitr 

tt  us.  •>* 

3.  Any  creditor  may  §uc  an 


INDEX. 


543 


pn  furmi,  provided  he  shows  him- 
self to  be  a  creditor  under  the  laws 
'of  the  country  where  the  contract 
v.'as  made,  and  as  Jong  as  assets  re- 
main in  the  hands  of  such  executor, 
he  is  answerable  to  the  creditors;  aixl 
if  there  is  any  surplus  it  is  to  go  into 
the  muss  of  tlie  succession,  to  be  dis- 
tributed according  to  the  laws  of  )he 
country  where  the  testator  was  do- 
miciled. De  Sof/ry  j;  Terrier,  224 

4.  Art  executor  pro  forma  is  accounta- 
ble  to    the    testamentary  executor; 
only  for  the  surplus  remaining  after 
pavment  of  debts.  Ib. 

5.  Whatever  fund  in  this  state  is  an- 
s\\-(Tubk-  for  debts,  is    answerable  to 
all  creditor;;  alike,  according  to  the 
laws  of  the  State.  Ib. 

6.  If  (he.  liiws  of  this  state  give  a  pre- 
ti'ivnce  to  its  citi/ens  in  the  payment 
of  the  debts  of  a  deceased,  the  de- 
fendant, if  sued  by  a  foreign  creditor, 
must  pieud  such  preference.  Ib. 

7.  The  not  returning  an   inventory   on 
the  estate   of  the  deceased  by  his  ad- 
ministrator, is  not  sufficient  evidence 
to  charge  the  administrator  with  the 
debt  of  the  intestate.    Iseckt's  Mm'-r. 
tl  JfauirN,  373 

8.  Where  the  executor,  &c.   had  con- 
fessed the    action,  and  admitted  the 
debt  was  due  to  the  plaintiff',  and  an 
auditor    was    appointed    to  ascertain 
the  sum  for  which  judgment  should 

'  he  rendered,  regard  being  had  to 
the  assets,  &c.  according  to  the  act 
of  1798,  c/i.  101,  sid  cfi.  B,  ».  9,  v/hich 
appointment  was  afterwards  stricken 
out  by  the  court,  and  a  judgment 
rendered  on  the  confession  above 
mentioned,  for  the  debt  and  costs 
de  bmiis  tcstntoris,  si  rum  de  bonis  pro- 
pnis  as  to  costs,  such  judgment  was 
held  to  he  erroneous,  and  was  re- 
versed. Norfolk  v  Ganff,  4.35 

9.  Art  administraior  must  comply  with 
the    order  of  the  orphans  court  di- 
recting rt  sale  of  the  personal  estate 
Of  the  deceased  for  the  payment  of 
debts,  and  he  cannot  retain  the   pro- 
perty at  the  appraised  value,  on  pay- 
ing the  debts  out  of  his  own  funds  to 
the    amount    of    the    appraisement. 
Hall  r  Griffith,  48» 

10.  After  payment  of  the  debts  of  the 
deceased,   and  all    legal    costs    and 
charges  attending  the  administration, 
the  administrator  must  deliver  over 
the  residue  of  the  personal  estate  spe- 
cifically to  the  representatives  of  the 
deceased.  Ib. 


11.  Where  an  administrator  retained  a 
part  of  the  personal  estate-  of  the  de- 
ceased, at  the  appraised  value,  an'l 
sold  a  part  for  the  benefit  of  the  es- 
tate, and  a  part  as  his  own  property— 
11' Id,  that  he  must  account  for  the  in- 
crease of  the  slaves,  and  for  the  use, 
labour  and  hire,  r.f  ;dl  slaves  retained 
or  hired  by  him;  and  whore  one  of  tha 
slaves  hud  runaway,  he-  must  account 
for  such  slave  at  the  appraised  value, 
unless  he  us»-d  all  reasonable  endea- 
vours to  regain  possession  of  the  slave . 
He  is  to  be  allowed  for  money  e-- 
pended  in  clothing  and  maintaining 
snch  slaves,  as  were  unable  to  work, 
and  in  bringing  up,  clothing,  fkc.  the 
increase  of  --Lives,  so  long  as  they  con- 
tinued a  charge.  Also  for  all  debts 
paid;  for  his  commission,  and  all  legal 
cots.  II'.-  is  to  be  charged  with  the 
amount  of  the  inventory;  with  the 
sum  gained  on  the  sales  of  the  pro- 
perty, and  with  the  debts  received. 

7£. 

12.  A  complainant  i<?  not  entitled  to  re- 
lief in  equity  against  the  executors 
of  a  joint  obligor,  who  was  a  surety 
in  the  bond.  Per  Hanson,  Chan.  Wil- 
liams v  Hodgson,  474,  fnotcj 

See  Attachment  2. 

Evidence  44,  45. 

Executor  DC  Son  Tort. 

Pleading  1,  3,  4. 

Plene  Administravit  1. 

EXECUTORV  DEVISE. 

1.  Where  the  limitation  over  is  in  fee 
after  an  indefinite  failure  of  issue,  it 
is  not  good  as  an  executory  devise, 
because  of  its  tendency  to  create  a 
perpetuity  by  rendering  property  tin- 
alienable,     flrury  &  Bennett  v  Negro 
Grac?,  556 

2.  Z  W,  by  his  will  devised  as  follows: 
"1  devise  and  bequeath  the  whole  of 
my  property,  r'-al  and  personal,  to  my 
beloved  daughter  M  VV,   to  her  and 
her  heirs  for  ever;  and  in  cast  she  dies 
ivitlit>'<!  lawful  i.ssue,  then  the  whole  of 
my  said  property  is  to  be  possessed 
by    my    dear     wife     A,    during    her 
iviiinwhond,  and  no  longer,  and  at  her 
death  or  marriage  to  be  sold  at  public 
sale,  and  the  moiioy  arising  therefrom 
to  be  equally  divided  between  H,  C 
and  N ."     M  VV  obtained  possession 
of  the  property  so  devised  to  JUT,  and 
died  in  the  17th  year  of  her  age,   un- 
married, and  without  having  any  issue, 
having  by  her  will  manumitted  -.ill  her 
slaves.    "A,  the   widow   of  the  tcsto- 


9*1 


IND 


tor,  is  now  livir.i*,  Vn<  -n^  in   th*   life- 
time  m'  M  \V 

mmunutted 

);ic.i  tor  IHT  freedom 

•.-.t   II,    C    and  N   -  //•/./,  tli.a   the 

11  the  \\illlo  A,  dm''!!!? 

her  widowhood,  constituted  *  good 

itory   dnUe,   because  it   was  to 

Ct  on  the  coutin^'-fu-y  »t"  M 

V.  ,t  h-aving'  issue  at  the 

•  if  bet  (ka'h:  .md  Uiat   the    peti- 

t  loner  is  not  entitled  to 

/See  Devise  7. 

F.M'MPLIFI  CATION. 

&e  Authentication  I,  ^. 
—    Kvidencc  '"•  ,  33. 

-  OMCI:  <'opy  1. 

-  Official  Acts  1. 
—  Record  1. 

EXPLANATION. 
A!r«  Covenant  1. 


1.  A  bond  tfiven  by  om-  partner  for  a 
simple  contract  debt  d-.ie  from  the 
partners  to  a  creditor,  and  acrvpt«-d 
hy  lii  in,  is  by  operation  of  law  a  re- 
lease of  the  other  partner,  and  an  ex- 
tinction of  the  simple  contract  <!,.;, 
at  law  and  in  e«iuHy.  William*  v 

f/IM?XW,  *?* 

See  Bi-q-jcit  1  . 

-  Court  of  Chancery  5. 

-  -  Covenant  1. 

-  -  Ueviso  1. 

-  -  French  Laws  *,  5. 

-  Ignorance  1. 

F. 

FACTOR. 

See  Discount  3. 


i  •  vniKUft  CHILD. 

•Sire  Parol  Agreement  1. 

FKC  SIMPLE. 
fire  D«"VMC  4,  S. 
--  i:v>,tc  Tail  '2,  9. 

TAIL. 


See  Estate  Tail. 


.. 

-nny  br  jom- 

,-,1  ,  ,  in  lictin-jiit.      Bt*M  r 

Vale,  4-b 


1 


j  I-N'. 

conveyances,  .lefrcttvely  nc- 
ftinct 


were   hcM  not  to  p ..  .tp.  in 

tli."  Ian  It   to  the   grantees      Grt^ft 

-,  et  ul.  L  •  J 

HuUing»worthtet  uj .  :  M-I)onul<l,rtul. 

2.  A  fc>nr  conrt  cannot  transfer  or  pass 
her  interest  in  Imul  to  another  unless 
by  fine,    common   recovery   or   deed, 

..ii'l  .»'.  k  M'.  .--cord- 

iij.i"  to  the  niodv-  I  !>>  llu  aet 
<>l     •  l.i,  >:'».-     .  .      H 

t  M'lh.iuH,  et  al.  -V>0 

3.  A  liter.d  adherence  to    the    form    uf 
the  certificate  of  the  acknovrledgment 
of  a  deed  by  r.  .    - 

tKMltial'M     reij'i:>iile;  ,i'l  I    the    oh.. 
of  wnnls  deemed    essential    can    be. 
supplit  d  bv  the  substitution  of  words 
equipollent,   or  of  Miuilar  im]n.. 
sit^niHcation.  16. 

Sit    Witness  .1. 

FIKRI  FACIAS. 

1.   \uvitiiftffin;   ufier   sc-i'.'ire  un  Ter 

a  furi  J'i  ,  is  no 

xcdeaa.     1>  iV.  c  Cfui;>- 

tin-,  7 

-'.  U  letherornot  the  return  made  on 
a  fieri  fifini  >>y  a  >'ner.!i',  stauni;  that 
he  had  laid  it  "on  four  acres  of  laml 
ne:ir  /fa/// w>re-town,  and  i*djoining; 
tl»c  Ian  Kof  d  /-,"  al-o  on  "about  'i7 
acres  of  land  more  or  less,  part  of 
T  //or  T  li,  :.n  1  part  of  At  X,  King- 
to  the  N  side  of  yj(7/-->lreet  nr.ir  Ilui- 
tiiti'ire  town,"  ifv.  and  the  sherin''» 
return  on  a  teaditioiu  txp. 
for  »  salo  of  the  lands,  that  he  had 
"mode  and  sati-»ried  plaintitFin  part," 
together  with  parol  evidence  of  the 
sule  of  the  lands  by  the  sheet  if,  and 
his  deed  therefor  to  the  purchaser, 
are  sufficient  to  vest  the  legal  title  to 
Uic  lands  in  the  purchaser >  M- Elder' 
ty  o  Smit'  7'2 

;•.    II   the    defendant,   during   the   pen- 
dency of  a  itdre  facia*,  on   a  judg- 
ment  against   him,  aliens   his    '. 
the  pl.iintill'  after  a  Jlit  on   the  ncirt 
facii  :r   a   ft"  i  _/'/<""'-".    aid 

"levy  it  on  the  lands  so  aliened,  with- 
out proceeding  airainst  the  all 

Ib. 

4.  If  \  has  purrh.tscd  land  from  H,  and 
paid  lor  it,    without  receiving  a  con- 
ice,  or  it  I<  'tolds  in  tiMi-,t  for  A. 

\  ha*  an  interest  liable 
to  be  taken  and  sol.l  •  •.-'./>, 

and  the  purchaser  in  entitled  to  the 
Hid  of  the  court  of  chancery  to  ob- 
tain tlie  legal  title.  Fwf  JlMiion, 
Chan. 

r  Stump,  et  al. 


INDEX. 


545 


5.  But  if  A  has  only  contracted  and 
given  his  bond  for  the  purchase  mo- 
ney of  a  tract  of  land,  and  received 
in  return  a  bond  of  conveyance  —  Has 
A  such  an  equitable  interest  as  is  lia- 
ble to  he  sold  on  a  fitri  facias,  so  as 
to  place  the  purchaser  in  the  room  of 
A?  Ibid.  Ib. 

0.  Whether  or  not  land  is  hound  by  a 
judgment,  so  far,   as  that   if  A   has  a 
judgment    against    him,    and    before 
execution,  A  buna  fide  sells  his  rig-lit 
to  B,    that  C,   the   plaintiff,   may  on 
fieri  facias  take  and  sell  it   without 
inquiring  or  seeking  for  other   pro- 
perty.'   fb'ul.  Ib. 

1  '.  A  judgment  having-  been  obtained 
by  B  against  K,  and  C  his  surety,  a 
Jl'ri  facias  issued  thereon  against  E, 
who  survived  C,  and  was  laid  on  E's 
luiul.  Tiie  administrator  of  C  paid 
the  amount  of  the  judgment  to  B, 
who  directed  the  judgment  to  be  en- 
tered for  the  use  of  the  administrator 
of  C.  A  vcnditiiiid  cxpunas,  issued  for 
the  use  of  the  administrator  of  C,  for 
a  sale  of  the  land,  was  returned 
unsold,  &.c.  and  was,  on  motion  of 
the  defendant,  qua&hed.  Ee,rnj  v  Ni- 
choll*.  508 

See  Attachment  1. 

-  Insolvent  Debtor  1. 

FIXE. 
S?e  Feme  Covert  2. 

FOREIGNERS. 

1.  If  a  contract  is  made  in  this  state  be- 
tween foreigners,  and  the  debtor  dies 
in  a  foreign  country,  the  creditor  may 
recover  in  the  courts  of  this  state  ac- 
cording- to  the  laws  of  the  state.     J)e 

v  Tcrriti;  228 


FOREIGN  COURTS. 

iS'ee  Authentication  2. 
•  --  Seal  2,  3. 

FOREIGN  LAWS. 

1.  Parol  evidence  admitted  to  prove  the 
manner  in  which  wills  are  made  and 
proved  in  France..     De  Sobi-y  Ex'r.  of 
fl\rntr  v  Terrier,  191 

2.  Proof  of  the  French  laws  in  testamen- 
tary affairs,  Jkc.  returned  under  H  com- 
mission to  take  testimony,  and  admit. 
ted  in  evidence.  Ib.  198 

3.  The  laws  of  a  foreign  country  are  to 
be  proved  by  evidence,  and  the  court 
are  to  decide  what,  is  proper  evidence 
of  such  laws,  and  to  construe  thorn, 
and  judge  of  their  applicability  to  the 
question  before  the  court.  Jb.  219.  229 

VOL.  ii.  69 


4.  Any  creditor  may  sue  an  executor 
firofor/ita,  provided  he  shows  himself 
to  be  a  creditor  under  the  laws  of  the 
country  where  the  contract  was  made; 
and  as  long  as  assets  rem.iin  in  the^ 
hands  of  such  executor,  he  is  answer- 
able to  the  creditors;  and  if  there  is 
any  surplus,  it  is  to  go  into  the  mass 
of  the  succession,  to  be  distributed 
according  to  the  laws  of  the  country 
where  the  testator  was  domiciled. 

Ib.  224. 

See  Contract  2,  3,  4,  5,  6,  7,  8. 

Distribution  2. 

French  Laws. 

FORGED  BANK  NOTE. 

See  Assumpsit  3. 

FORGERY. 

1.  A  surveyor's  original  book  of  surveys, 
and  his  parol  testimony,  admitted  by 
the  general  court,  in  an  action  of  e- 
jectment,  as  competent  and  admissi- 
ble evidence  to  prove  that  a  certifi- 
cate of  survey  returned  to  the  land  of- 
fice, was  forged.  JBwcing's  Letmee  v 
Singer yt  455 

See  Court  of  Chancery  42,  43,  44. 

Evidence  86,  87. 

FORMULA. 

See  Acknowledgment  of  Deeds  1,  2,  5. 
• •  Feme  Covert  1,  3. 

FRAUD. 

1 .  Fraud  is  not  to  be  considered  as  a 
single   fact,    but  a  conclusion  to  be 
drawn  from  all  the  circumstances  of 
the  case.      Jtrogden  v  Walker's  Ex'r. 
&?c.  293 

2.  Fraud  may  be  inquired  into  in  a  court 
of  law.   !">ee  FOUUCHY,  1.  PAROL  EVI- 
DENCE 9,  and 

jBofelng'-f  Lessee  v  Singery,  455 

3.  Where  a  bill  was  filed  in  chancery  to 
set  aside  and  annul  a  decree  hereto- 
fore obtained  by  the  defendant  against 
the  complainant,   on  the    ground  of 
fraud  practised  by  the  defendant  in 
obtaining  that  decree,  there  appear- 
ing to  be  no  evidence  of  fraud,  the 
bill  was  dismissed.    Hoffman  v  Baker, 

*i>b' 

4.  Where  a  court  of  law  admitted  evi- 
dence to  prove  that  a  certificate  of 
survey   was    forged,   such    evidence 
could  not  have  been  deenird  admissi- 
ble, only   on   the  ground,  that 
certificate  was  proved   to  be  forged, 
the  grant  obtained  on   it  was  fraudu- 
lent, and  could  not  have   RIIV   opera- 
tion in  law  to  puss  the  hud  to  the 


tflG 


1NDKX. 


grantee  therein.    Singtry  • 
itty-Genfral,  *A' 

.id  may  be  inquired  into  as  well 
at  law  us  ii!  equity,  and  where  frauds 
arc  clear! 

law  and  :i  court  of  chancery  have  con- 
cum  '•«<-*»•  H>. 

6.  On  a  bill  in  chancery   for  vacating  a 

ficjitc  of  survey  and  grant  of  the 
land,  on  the  ground  of  a  fraud  com- 
mitted by  a  forgery  of  the  certificate 
—  //'/•/,  th.it  th.:  court  of  chancery 
had  jurisdiction,  although  the  C^UL-.- 
tion  of  forgery  of  the  same  certincl^ 
had,  in  an  action  of  ejectment  be- 
tween the  wine  parties,  come  col- 
laterally ho  fore  a  court  of  law  ami 
jury,  and  the  court  admitted  evidence 
to  establish  the  forgery,  and  the  jury 
pave  their  verdict  in  favour  of  the  de- 
fendant,  who  claimed  under  the  cer- 
tificate alleged  to  be  forged.  Ib. 

7.  Although  on  a  bill  in  chancery  charg- 
ing1 forgery,  the  defendant  cannot    l>e 
Compelled  to  answer  any    fact   which 
will  criminate  himself,  yet  that  court 

.11.1   till 

proof  of  the  forgery,  by  vv :. 

•eeii  committed,  will  grant  riTu-f 
by  vacating  the  grant,  &.c.  from 
whence  the  injury  has  arisen,  or  will 
make  such  decree  as  the  circumstances 
of  tin;  case  render  necessary  Ib, 

See.  Court  of  Chancery  7,  tQ,  2*,  3-*, 
40,  4*. 

FREEDOM. 

1.   A    parol   sale   of  a  slave   for  seven 

years,  and   then    to  be  set  free  and 

manumitted  by  the  vendee,  who,  on 

the   expiration   of  the    seven 

executed  a  deed  of  ifMnumiauon — 

Jfc/il,  that  it    was   suflicicnt   to   grant 

!<>m  to  the  slave.     Negro  Cain  v 

ml,  573 

~.   Where  a  slave   was  sold  in  this  state 

by  an  administrator  of  a  deceased,  to 

a   person  resident    therein,  b-it   who 

afterwards   removed  to    /  7, •_"'"•'»/ and 

took  the  slave  with  him — IftlJ,  that 

lave  was  not  entitled  to  his  frce- 

d'im.      .iV^rr;  fi'-.nrg'  454 

5"   F.tidei," 

II    • :-..   Kvidence  2,  3. 

— —  Manumission  1 ,  2. 

FRENCH  LMVS. 

1.  If  an  heir  pure  and  simple,  heir  with 
benefit  of  inventory,    nr    beneficiary 
has  not    i.  1  with  tin- 

C  or  succc- 

ins  '"*  France,  so  as  to  prevent  h 
cover)    as  such   under    the    French 


laws,  he  can  recover  in  the  courts  of 

this  -.true  on  a  contract  made  in  J 

2.    \Vlx-iluT    or    not   his   having  intr:- 
meddled  would  di -feat  his  right  of  f 

Ib. 

".   Unless  the  jury   ar<-  satisfied,  accor- 
ding to  the  laws  <>t    r.-n'i'-,  tli  r 
heir  with   benefit   of  imentory,    wl.n 
•or,  cannot  recover  in 
the  quality   of  creditor,    without  re- 
nouncing, then  such  eo-'n,  ir  i.-, .  : 
to  recover  as  a  creditor  whatever  the 
jury    may    find    due    on    a   contract 
nu'fr  in  France,  according  to  tin- 
of  France.  22B 

jiart  of  the  personal   estate  of  a 
testator  (lying  in  /',.  •< -ct  to 

duttibution  uinong  his  co-heir^,  but 
the  sin  |il.  Miuin,  remaining 

after  the  payment  of  all  hi- 
legacies;  nnd  a  debt  due  to  ofte  of  tl.e 
co-li  '.'ich   entitled  to   pay- 

ment as  a  debi  due  t  .-,    un- 

a  law 

uditiT 

witii  .ton  ,  it  In 

not  renounce  as  f-o-heir.  Ib. 

5.  The  lav.  •    are   matt 

faet  to  be  found  by  the  jury,  upmi 
cvi<lcnce  to  be  produced  to  them; 
nnd  unless  the)  find  some  law  <<!' 
France  which  extinguishes  the  cluim 
or  right  of  recovery  of  (he  plaiiitifi", 
(being-  co-heir  and  creditor,)  he  h:is 
ur'.ght  to  recover.  //. 

6.  Vt  here    tl.e  court   directed  the  jury 
tiiat  it  did   not    appear  to    tin-   court 
that    there    was   any    law    of  Frumt 
•which  was  :i  legal  impediment  to  the 
pl;uniiH''s  r.-co.  11 

Set  Foreign  Laws. 

G. 

GAHNlSHfeE, 

Sec  Attachment  J. 

I.   Dr.SCRIPTIOX. 
See  Description 

(,r\n;  \i,  ;:I.;T  CATION. 

Fee  Hearsay   KviJencc  '2,  J. 


See 


'  INK. 
Bank  Note- 


(.!<  \ 

>1  evidence  admitted  to  provr 
that  the  land  granted  to  the  nusljan.l 
of  a  dcnundant  is  tho  vin.e  land  i>» 


INDEX. 


which  do\vcr  is  demanded.     Knfirv 
Young,  53 

J.  If  the  heirs  of  J  S,  in  whom  the  title 
to  a  tract  of  land  was,  were  living-  in 
Great  Hrilain  at  the  passage  of  the  act 
of  confiscation,  then  an  escheat  war- 
rant issued  to  E  N  for  the  said  land, 
issued  without  authority  of  law.  But 
thut  a  grunt  which  issued  for  the  land 
surveyed  under  such  warrant,  came 
within  the  provisions  of  the  8th  sect. 
of  the  act  of  J\'nv.  1781,  ch.  20.  Ow- 
!»^''  i>  Norwood's  Lessee,  96 

p.  Such  grant  is  valid  to  pass  the 

land  lo  E  N,  notwithstanding  he  had 
paid  no  more  than  two  thirds  of  the 
appraised  value  of  the  land.  Jo. 

4.  Lands  liable  to  confiscation   may  be 
granted  by  the  state  under  an  escheat 
warrant.  lb. 

5.  Such  escheat  grant  will  operate 

by  relation  so  as  to  give  title  from  the 
date  of  the  warrant  of  escheat.        lb. 

6.    The   8th  section  of  the  act  of 

Nov.  1781,  cti.  20,  secured  the  land  so 
escheated  to  the  party  on  his  paying 
two  thirds  of  the  value.  lb. 

7.  Where   the  court   would  not  direct 
the  jury  that  the   plaintiff's  escheat 
grant  did  not   pass  the    land,  the  de- 
fendant claiming  the  same  under  u  de- 
fective title.  Jb. 

8.  If  land  liable  to  escheat  is  included 
in  a  certificate  of  survey  and  grant, 
vnder  an  escheat  warrant  on  another 
triict  of  land,  such  grant  will  operate 
to  convey  a  good  title  to  the  land  so 
included,  if  there  has  been  possession, 
and   payment  of  emit  rents,  for  more 
tjian  twenty  years,  &c.      Hall  v  Git- 
ting&Jrs.  Lessee,  115 

?.  Land  not  liable  to  escheat  at  the  time 
it  was  included  in  a  grant  on  a  survey 
made  in  virtue  of  an  escheat  warrant 
on  another  tract,  but  which  after- 
wards became  escheat,  will  not  pass 
under  such  grant,  and  the  state  is  not 
estopped  from  granting  it  to  any  ci- 
ther person.  16. 

1.0.  An  escheat  grant  relates  tp  the  ori- 
giual  grant.  Hall  v  Gittings  Jrs.  Les- 
see, '  115 
Hoica--d  v  Moah  et  al.  Lessee,  260,  263 

11.  If  there  are  two  descriptions  of'land 
granted,  the  one  by  name  and  the  o- 
ther  by  metes   and  bounds,  the  grant 
will  operate  to  pass  the  land  accord- 
ing to  that  description  which  is  most 
beneficial  to  the  grantee.    Hull  v  Gil- 
tings  Jrs.  Lessee,  117 

12.  An   escheat  grant  operates  to  pa:-s 
t^e  whole  of  the  original  traut  es- 


cheated.    Hull's  Git/ings  J>s.  Lessee, 

117 
Ilmrard  v  Noale  ct  al.  Lessee,         263 

13.  The  jury  were  directed  on  certain 
evidence   of  title    and  descent,   that 
land  which   hud  been  granted  as  es- 
cheat   land   was  not   liable  to   be  es- 
cheated.     Hall  v  Giltingis  Jrs.  Lessee, 

122 

14.  An  e$cheat  grant  isprima  facie  evi- 
dence of  title;  but  being  a  presump- 
tion of  right,  it  only  exists  until  the 
contrary  is  proved.  lb. 

15.  Where  a  certificate  of  resurvey  was 
liable  to  be  vacated  upon  a  caveat, 
and  the  vacant  land  included  thereiti 
might  be  and  was  granted  to  another 
person,  whether  or  not  a  grant  for  the 
land  in  the  first  mentioned  certificate 
will  not  pass  the  land?     Hammond  et 
ql.  Lessee  v  Norris,  13U, 
ffammond eta!.  Lessee  v  War/! eld,  151' 

16.  To  entitle  the  party,  not  seized  of 
the  original   tract  resurveyed,  to  the 
relation  of  his  grant  to  the  certificate 
of  resurvey  for  the    vacant  land  in- 
cluded therein,'  he  must  prove  that 
his  certificate  was  returned  to  and  in 
the  land  office  'at  the  time  the  junior 
survey   was  made.      ll<j.mm<jnd,  ct  al. 
Lessee  v  Nrirris,  132 

17.  If  a  person,  ngt  seized  of  the  ori- 
ginal tract,  takes  out  a  warrant  to  re- 
survey  such  tract,  he  acquires  a  title 
in  the  vacant  land  included  in  such  re- 
survey,  when  the  composition  money 
is   paid,   unless  some  other  person  in 
the  mean  time  becomes  interested  iri 
such  vacant  land.  lb. 

18.  Where  the  grant  will  relate  to  the 
certificate  of  resurvey  so  as  to  over- 
reach a  mesne  grant  for  the  same  land, 
Hammond,  et  al.  Lessee  v  Aorris,     132 
Huinmijud,  dal.  Lessee  v  Warfidd,  152 

155 

1C>.  A  grant  for  vacant  land,  not  con- 
tiguous to  the  original  tract  included 
in  a  certificate  under  a  warrant  of  re? 
survey,  will  operate  to  pass  such  va- 
cant land,  unless  some  other  person 
in  the  mean  time  becomes  interested 
in  such  vacancy.  lb. 

20.  Where  the  relation  of  a  grant  to  the 
certificate  of  survey  depends  upon  th$ 
tiiue  when  the  caution  money  was  paid. 

lb. 

21.  Where  it  depends  upon  the 

time  when  the  certificate  was  return- 
ed to  the  land  office.  lb. 

22.  To  entitle  the  party  to  the  benefit 
of  the  relation  of  his  grant  to  the  cer- 
tificate of  survey,  it  i*  incumbent  on 


048 


INDEX. 


Mm  to  show  an  equity,  and  flie  pro- 
ducing  copies  under  sell  of  tlie  war- 
rant, certificate  of  survey  and  grant, 
is  not  sufficient  to  entitle  liim  to  such 
•it.  J{<t'.ini<)iiJt  ct  a  1.  Lt-iaee  v 
ll'<,r  field,  159 

J3.  A  grant  of  land  is  to  be  construed 
rnoit  favourably  for  the  grantee.  Tol- 
soii'  /stnlitun,  17-V 

t4.  A  grant  for  land  cannot  he  corrected 
or  controled  by  the  Certificate  of  SUr- 
vcy,  but  will  pass  the  Kind  compre- 
hended within  the  courses  and  dis- 
tances expressed  in  the  grant.  Il>. 

25.  If  a  grant  is  for  more  land  than  is 
contained  in  the  certificate  of  survey, 
it  may  be  lacated  in  the  court  of  chan- 
cery; but    if  it   is    for    less    land,  the 
grantee's  remedy,  if  any,   must  be  in 
equity.  Ib. 

26.  The  Proprietary  held  the  dominion 
of  Maryland,    and    property    of    the 
Boil,  which  he  could  sell  and  dispose 
of  in  the  same  manner  as  any   other 

in,  and  subject  to  the  same  bene- 
ficiary Ie.if.tl  and  equitable  rig1 
in  tin-  hands  of  any  other  p«  rson;  and 
on  an  equit.ible  interest  being  obtain- 
ed agreeably  to  the  rides  of  the  land- 
office,  by  any  person  taking  otit  a 
•warrant,  returning  a  certificate  of 
survey,  and  paying1  the  composition 
money,  the  party  became  entitled  to 
a  grant,  which  he  could  compel  from 
the  Proprietary.  Howard?  '.' 
ul.  Lessee,  249,  2.59 

27.  I  he   reversionary    interest    of   the 
Proprietary,  reserved  m  lands  granted 
by  him,  might  be  destroyed  by  deed 

•  by  the  tenant  in  tail  under  the 
act  of  Jtuu  17' '5,  c/r.  1,  as  effectually 
as  the  reversionary  right  of  any  indi- 
vidual. Jb. 

28.  A  subsequent  grant,   covering  land 
in  which  the  Proprietary  had  a  rever- 

t,    will  operate   to  pass 
su»  li  reversionary  interest.  fb. 

29.  An  escheat  certificate  and  grunt  do, 
by    operation    of    law,    relate    to   the 
original  tract,    ai.d  is   strictly    within 
the  principle  and  rule  of  law  of  rela- 
tion betwern  grunts  and  certificates. 

/!,.  Jfi.J 

30.  Where  the  first  and  second  . 

of  an    original  tract    of   land    ralied 

/>  l-\  are  described  as  "beginning  at 

a  hounded    locust    tree,  bring  the  N 

1      "inded  tree  of  />  .  Jcall- 

rd  >'<',}  and   running  by  the  land  of 

*  ps.  to  a  bounded  oak, 

then  N  E    150    p«.  to  a  bounded  red 

..f  the  said  /JI,  land;"   and  flic 

first  aitd  second  course*  of  an  es- 


cheat grant  of  the  snme  hnd  called 
J)  f,  is  described  as  "beginning  at   a 
locust,    now  bounded  at  or  ver 
to  the  pl-.ice    where  stood  a  bounded 
1'):  u-i',  tfie  original   beginning  tree  of 
D  >',  and  a    bounded   fee  of  a  tract 
of  l.iiid  called  f  (',  formerly   laid  out 
for    1)    1',   and    running   thercc   with 
the  laid  land,    K  6j    p.s.  (i;  being   ex- 
pressed in  tin:  certiticate  oftl;- 
nal  survey  to  run  by  the    land 
said  P,  E  63    ps.  to  .1   Ix.iiiuU.: 
which    cannot  be  found.)  tlu  IK 
23S  ps,   still   bounding  on  th< 

land,  to  the  N  W  branch   of  /Y 
river,    (it    being    therein    i\p 
to  run  N  E  loO  ps.  to  a  bound 
oak  of  tli:    siu!  /''••  land,  Mid  t!^ 
tificate   of  the  said  P's  land  mention- 
ing to  run  that  course  to  a  boumied 
red    oak  standing  by  the  side   of  the 
said  N  W   branch,    which   oak  is  not 
known,") — Held,  that  there   was   no 
doubt  or  ambiguity,    and  that  if  the 
beginning  of />    /'i<  rightly    1< 
on  tiie  plots  at  the  termination  of  the 
twelfth  line   off.'  <',  and   theie  is   n> 
evidence  of  the  of  any  tree 

as  called  for  at  the  termiuvioii 
of  the  first  line  of  J)  /',  then  the 
expressions  in  the  escheat  grant 
do  bind  that  grant  to  the  true  locati- 
on of  the  original  tract  called  />  /'.  .u 
to  the  two  first  lines  thereof,  so 
the  second  line  of  the  nni;inal  did  ac- 
tually extend,  and  that  tlu-  !ir>t  un.l 
second  lines  of  the  original  tract  <io, 
by  virtue  of  the  expressions-  tlu  r.  - 
in  used,  bind  those  lines  on  the  thir- 
teenth and  fourteenth  lines  of  ('  «'. 

Ib.  264 

31.  Where  the  plaintiff  has  not  located 
h'.s  escheat  grant  on  the  plots  co-ex- 
trusive with  the  location  of  the  origi- 
nal tract,  lie  cannot  give  evidence  to 
•  •Vend    his    pretensions   b?_i'>i:d    the 
lines  and  limits  he  I  :o  t!ie. 
t-scheat  grant;  but   I.                    >•  d   l-y 
that   location  from  }•"                    >l   t'nr 
letter    /",    lor.iU  •!  on  the  ; 

wheuco    In-  must    run  tu   the  li, 
.rr/'i   branch   at    \vh. 

the  s:ime  may  be,  agrc'-ably  tr»  his  !•>. 
•  :»  of  his  pi-eli.ii-.ions,  and  the  lo- 
.11  by  which  the  defendant  Ins 

32.  The  plaintiff  cannot  give   a:r. 
dence  ofthe  lin-  ;;Tai.t 
running  otherwise  than   li- 
ed them  on  the  plots  as  hi 

or>R,  hut  he  isnot  precluded  from  giv- 
ing evidence  of  any  other  i 
linen  of  the  origin  J  tract,  by   way  of 


INDEX. 


illustration;  and  lie  ir>ay  support  the 
location  of  his  pretensions  so  f:ir  as 
he  can  sliow  that  tlicy  arc  located 
within  the  limits  of  the  original  tiact. 

Jt>. 

33.  I-Yom  the  place  where  the  second 
line  of  a  grunt  of  land  terminated,  the 
third  line  thereof,  viz.  "Then  N 
JS'  V.  .S6  p.  to  a  bounded  red  oak," 
must  run  the  number  of  perches  ex- 
pressed in  '.he  grant,  and  cannot  in 
its  length  he  increased  or  eliminis'hc-d, 
unless  proof  is  made  (,fthe  tree  called 
for,  or  the  place  where  it  stood. 

Jh.  267 

34. So  the  fourth  line,  viz.  "Then 

S  \v  to  the  head  ot  //,  u- aril's  branch," 
must  nn,  a  straight  line  to  the  head  of 
I/ward's  hrj'iich.  74. 

35.  The  course  and  distance  expressed 
in  a  ^rant  of  land,  must  always  be  con- 
trolfd  by  a  call   expressed  therein   as 
the  termination  of  the  course;  and  the 
following1  course  and  distance  used  in 
a  grant,  viz.    ".N  K  50  ps.  to  a  small' 
branch    which   maketh  the   outward' 
iiar-ows    cf  the  said    land,"  must  be 
complied   with   as  nearly  as   they  call 
to  strike   the.  brunch   described,  as   it 
existed  at  the  time  of  the  survey,  sub- 
ject to  the  variation  of  the  compass  on 
that  line.  Hi.  269 

36.  Where  the  court  refused  to  direct 
the  jury  that  the  second  line  in  a  grant 
of  land,  vi/.   "Then  N  K  150  ps.  to  a 
bounded  red  oak  of  the  said  P'x  land," 
(being   the  fourteenth    line   of   that 
land,  which  tree  heirg-  lost,  the  plae.e 
where  it  stood  could  not  be  proved,) 
must  terminate  at  the' end  of  15Q  ps. 
from  the  beginning  thereof,  it  being 
a  matter  of  fact  to  be  left  to  the  de- 
termination of  the  jury.  lit.  270 

37.  The  court  refused  to  direct  the  jury 
that  an  escheat  grant  did  not  pass  any 
Jaud    included  iij   the  original   grant, 
except  the  same  was  included  within 
the  metes  and1  bounds  of  the  escheat 
grant  as  particularly  described;  and 
that  the  escheat  giant  did  not,  by  le- 
gal  operation,  convey  all  the  land  in- 
cluded within    the  original  grant,  un- 
less the   particular  metes  and  bounds 
of  the   escheat  gr..nt  did  also  include 
the  same.  lit.  271 

38.  A  grant  of  land  surveyed  under  a 
common  warrant,  will  not  pass  land 
not  then  liable  to  escheat,  but  which 
afterwards    became    escheat,   and    as 
such  granted  to  a  third  person.  Quere. 

Jb.  261,  (~notej 

39.  Where  the  <  xpresMons  u>ed    in  a 
grant  of  land  ih  scribed  it  as  "h  ing  on 


the  ridge  of  gunpowder  river,  begin- 
ning at  'a  bcimded  oak  being  llie 
\\  t-hicrnmost  bounds  ot  a  tract  ot  l;>inl 
laid  out  for  M.  S.  ant!  running  \\  :>'*() 
ps.  to  a  bounded  oak  ttu'inlu.^  by  the 
£/•«//  full*,  and  running  M  tiom  tli« 
said  oak,"  Ixc.  IhM,  that  they  do  not 
operate  to  bind  the  first  line  to  termi- 
nate at  the  great  falls,  oltho'  no  evi- 
dence is  given  of  the  tree  or  place 
w  here  it  stood .  Hull  v  GiUingft  Les- 
ser., 392 

40.  As  to  a  variance  between  a  descrip* 
i.fii  of  land  contracted  to  be  sold  ai.d 
cor.veycd;    and    that   mentioned  in  & 
grant  oftlie  laud,  see  COIUT  OF  CHAS- 
c>:iiY,  33  and 

liuiuiwind  v  Supping/on,  446 

41.  A  certificate  ot  survey  was  returned 
to  the   land  office   for  a  tract   of'laml 
called  B   J,  surveyed   on  the    linli  of 
April  1794,    for  A  J.     On  the  bth  of 
May  1797,  A  J   obtained  a  warrant  of 
resr.rvey  on  Jf'C,  and  in  his  rc-survcy 
made  on  the   1st  of  May   I79f,  Ke  in- 
cluded B  J,  and  called   the  laud  li  &. 
On  the  10th  of  May  179^,  A  J  obtain- 
ed a  proclamation  warrant  on  his  own 
certificate  of  the  land  called  B  K,  and 
had  it  executed   on  the  29Ui  of  April 
1799.     Kut  D  \V  had,  on  the  2Ult  of 
February  1798,  obtained  a  proclama- 
tion warrant  on  B ./,  and  had  it  execu- 
ted on  the  22d  of  May  1798,  and  call- 
ed the  land  B  C.     A  .)    paid  the  com- 
position money  on  B  S  on  the  8th  of 
May  1799,  and  L>  W  paid  the  compo- 
sition  money    on  ft  ^'  on   the  9th  of 
Ma)  1799.    .Both  certificates  were  ca- 
veatcd  by  the  opposite  purtv;undt)ie 
Judge    of  the    land    ofh'co    ordered  a 
grant  to  issue  to  A  J  for  the  land  call- 
ed B  A'.   To  vacate  v  hich  grant  a  bill 
was  filed  in  the  court  of  chancery  in 
the  name    of  the  attorney   general  at 
the  relation  of  D  \V.  Decreed,  ibul  ihc 
bill   be  dismissed.     Tut  .IttMnty  Cc- 
•»trul  vJurrttt,  4~2 

See  Fraud  2,  4,  6,  7. 

1'arol  Kvidence  9. 

Proprietary  1. 

Reversion. 

Trespass  4.  5. 

GUARANTY. 

1 .  '''he  defendant  in  a  letter  of  credit 
to  the  plalntiirs  in  favour  of  H  and 
Ci,  used  the  following-  expressions; 
"1  will  guarantee  their  cn^a^x-njcntj, 
should  you  thiiik  it  nee:fsxirv,  for  ;uu' 
transaction  tiny  ma\  h.ne  with  your 
h  j^bc .' ' —  //.  <V,  tiiat  the  guaranty  «  us 
an  absolute  one,  and  to  cor.iiiiuc  ur( 


1M)K\ 


td  coutuiTiTiaMded  by  t!,'%  defendant. 

r.  /^u'if.'u 
ftran  i. 

«.i   \UPI.\.\ 

Guardian. 

II. 


See 


HANDWRITING. 


T.  J. 

ini.MH  !<  AI'ION. 
&«  Dcscrij.:. 

ID  HOT. 
uirt  of  Ch;.> 

M.V  ,r  TIII:  LAW 

i-  %'•  '.n,<>- 

quenccs  resulting  fi  (  r  lu\ 

ing-  accepted  the  d<  .  >i  thc 

••UTS    for;*    simple   contract   debt 
due  from  llic  partiM  jshij.,   cam 
cuse  or  I'iiui  a  ground  lor   n.lii  . 
qnity.  /J  ,  -'i'AOM,  47^ 

&e  Court  of  Ch  i 


H.I.USTI.'A'i; 
See  Location  of  Lands  !<>'. 


IH'.AK-  \V   I.VIpr.MT. 

1.  Tlie  declarations  of  a  former  holder 
of  the    adjoining    lands,  as    to    the 
bounds  of  the  land  in    dispute   in  nn 
action  cf  e-ji-rtnicni,  admitud  in   evi- 
dence, it  not  appearing  by  the  plots, 
t.'iat  lit  was  interested  in  establishing 
the  fuels  related  by  him.     liaii 

'•.       '  U I . 

2.  In    a.     petition     for 
following      jiai't     of 

of  a  witness  was  held  to  be  compe- 
tent •  under- 
stood she,  [the  ance-'..r  •  •(  (lie  peti- 
tioner,] came  fj-om  R  N,  but  did  not 
inow  it  of  his  own  knowlcdp 
Jif-ard  that  she  wont  by  the  name  of 
Patt  Shorter."  As  also  this  part  of 
the  deposition  of  another  witness: 
"  !  hat  his  mother,  in  her  life -time, 
to',1  him  it  was  generally  reported, 
and  she  always  understood,  that  a  wo- 
rt.an  named  Fi. '.  •  :imc  to  the 
:v  of  J  Lt> 

••>,  360 

?.  The  declarations   of  a  deceased   per- 
son, then    seized  of  a  particular  tract 
of  land,  not  located  on  the  plots,  were 
offered  hi  evidence  b\  tin- defendant    &c  Con, 
in  an  action    of  .  j.-i-tn.en1,  t->    • 
the  end  of  the  fir.-t    line  ',('  tli:/ 
which  was  the  begin 
claimed  and    looted  on  the    p; 

defendant — f.'ilrf,  that  the  decla- 
•  !e   in    i-vi- 

• ,  :>y.J 


freedom,    the     See  Court  of  chancery  .35. 
deposition 

IMI'LII:I>  \VAKI:ANTV. 

See  Warranty. 

I.MlM?0\ri)  VAI.I 
See  Couit  ol'Chui.n.i  - 

IN  \DK.nr  Af  V  (UTF;l 
See  Court  of  Chancery  20,34, 

JNCl 

See  Ejectmcm  -,  o,  4. 

-  Limitation  oi  .  7,  8. 

IXC  M1  \\IT.N 

0. 


IN'  VALUE. 


INl)!',l'i:NDr.NT  C« 
Co>el.ain  o,  4,  «. 


;K. 

an  cst-'  in  a<~t 

of  assembly   in  (!:*•   fnit'iir  krlrx   »i»  a 
person     it    being   on  a    contin;, 
which  nf  •  .  htcrs 

then  living  will  take.    J>calltti.< 

16  7 
Possession  4. 

r.ntrv    1. 




u\ 


AI.  OPINION. 


wpi 

1.  AO  indicti  .ii'mg  two  counts, 

one  •  ,  and  the  i  \ii«  r  a 

,i'.ld  t(j  be  gon<l. 

Jturk  r  Tii"  A 
».  As  t->  the  join..  -.rin'i- 

n. 1 1  c.«jeM,    and  'he  joinder  ol  • 

of  action  in  civil  casig. 
3.  After  the  prisoner  has  (Jiudi.: 

rally    to    :«u    indictmc'it    having    two 
:•)•    may  be 

thai"--'!  >i;,oii  •.•*!••  f't  the  conn'..- 

tO   t!  v;!'.  Jb. 

Sec  Criminal  Prosecution  1. 

NT, 

Stt  Blank  Jiidi: 


INDUCEMENT. 

1.  Wlv.it  is  alleged  as  a  motive  or  in- 
ducement, in  the  deposition  made  by 
a  witness,  may  be  read  in  evidence. 
liry den  v  Taylor .  393 

INJUNCTION. 

1.  Whenever,  on  motion  to  dissolve  an 
injunction,  it  appears  from  the  answer 
that  the  complainant  was  entitled 
to  an  injunction  at  the  time  of  obtain- 
ing it,  the  same  shall  continue  until 
final  hearing1  or  further  order,  unless 
the  defendant  admits  every  thing  al- 
leged in  the  bill,  on  account  of 
•which  the  injunction  was  obtained. 
"When  that  admission  is  made,  and 
the  injunction  has  been  to  stay 
execution  at  hi\v,  the  injunction  may 
be  dissolved,  with  a  proviso  that  riot 
more  be  levied  than  remains  due  after 
allowing  every  tiling  claimed  by  the 
complainant.  Hut  when  a  proper 
ground  for  the  injunction  is  admitted 
by  the  answer,  and  there  still  remains 
.1  dispute  between  the  parties,  the  in- 
junction is  invariably  continued  until 
final  hearing  or  further  order. 
Lynch  v  Cul^ale,  34 

See  Court  of  Chancery  15. 

INNUENDO. 

See  Slander  4,  5,  6.     . 

INSOLVENT  DEBTOR. 

1.  Property,  acquired   by   an  insolvent 
debtor  after  he  has   been  legally  dis- 
charged under  the  insolvent  law  of 
March  1774,  ch.  28,  otherwise  than  "hy 
descent.,  if'//,  decfse,  bequest,  or  in   a 
•course  of  distribution,"  is  not  liable  for 
or  subject  to  debts  contracted  prior  to 
his  discharge;  and  if  such  property  is 
liable,  it  cannot  be  affected  by  a  Jifri 

facia*,  without  a  stire  facia*  having 
previously  issued,  if  a  year  and  a  day 
have  elapsed.  PoJlitt  v  Parnona,  61 

2.  No  person  can   set  up    his  discharge 
under   an  insolvent    law   to    disaffirm 
his  prior  acts.     See    ACTS,  1,  2,  and 
Dor  at  y  v  Gaspeutavy,  411 

See  Declarations  1,  3. 

Evidence  77. 

-  ••-  Reference  1. 

INSPEXIMTJS. 

1.  If  the  possession  of  land  has  gonr  a- 
greeably  to  an  ancient  deed,  which 
needed  no  enrolment,  the  luftpcximus 
of  the  d-.-ed  mny  he  read  in  evidence, 
and  is  effectual  to  pass  the  land.  Hdl 
v  Giff!  tigs' s  /<f.s.v , ,  380 

",  Proof  being  made  of  the  loss  of  an 


original  deed  of  mortgage  of  land  run! 
.daves,  dated  in  1763,  the  Jrupexiritui 
was  admitted  to  be  read  as  legal  evi- 
dence, altho'  the  deed  WHS  not  record- 
ed in  the  manner  prescribed  by  law 
so  far  as  respected  the  slaves  in  dis- 
pute Dorsey  v  Gassuway,  403 
See  Evidence  5o. 

INSTRUCTIONS. 

1.  The  proprietary  instructions  requir- 
ing a  survey  of  his  reserved  lunds  to 
be  made,  &c.  read  in  evidence.  Bore- 
ing's  Lessee  v  Singery.  456 

INTEMPERANCE. 
See  Court  of  Chancery  20. 

INTEND  ABBN'ft 

See  Court  of  Appeals  1. 
Judgment  1. 

INTENTION. 
See  Acts  of  Assembly  4,  5, 
Will  4. 

INTERESTED  WITNESS. 

Sec  Witness  1. 

INTERROGATORIES. 

See  Answer  in  Chancery  '.!. 

Commission  and  Commissioners  1. 

Notice  1. 

INTESTATE'S    ESTATE. 

1.  Any   creditor  may  sue  an    executor 
pro  forma,  provided  he  shows  himself 
to  he  a  creditor  under  the  laws  of  the 
country  where  the  contract  was  made; 
and   as  long  as   assets  remain  in    the 
hands  of  such  executor,  he  is  answer- 
able to  the  creditors;   and  if  there  is 
any    surplus,  it  is   to  go  into  the  mass 
of  the    succession,   to  be  distributed 
according   to  the  laws  of  the  country 
where  the  testator  was  domiciled,    /-'c 
Sobry  r  'J '  r/vVr.  2:24 

2.  Personal  property  adheres  to  the  per- 
son;   and   wherever    the   intestate   is 
domicif  at  the  time  of  his  death,  the 
property  is  to  be   distributed  accoi  fl- 
ing to  the  laws  of  that  country.        lb. 

INTOXICATION. 

Sec  Drunkenness. 

INVENTORY. 
Se.e  Evidence  4-i,  46,  58. 

Executors  &  Administrators,  1,  7. 

Plene  Administravit  I . 

JOINDER  OF  ACTIONS. 
1.  When  causes  of  action  may  be  join- 


INDIA. 


«-I  in  the  .  .n.     Lurk  ••  7?"? 

JtHNW.K  OF  «»i  i 

\>  ?•>?>!••    ;.  .iuler  of  otVences  in  cri- 
mii;  .'  joinder    of  c  ms- 

,  civil   cases.      //w/i    n 
TV  *• 

'  ning  two  counts, 

1  thrt   other 
10     be 


JOINT  TF.N.VNTS. 

1.    Win-re  :n  <•••  «»••  U  ve-^ed  hy  an    net 

of    assembly  in    two    persons    tlu-ir 

hfirj   and  assigns    is   it   an    estate  in 

j<.'">t  tenancy  or  tenancy  in  common' 

,  ft  nl.  fs.w  i'  Iluru.ti'itl,         167 

jjj-e  Acts  of  Assembly  o 

JOINT  ORLIGUHS. 

Mrt  of  Clrincery  I-'"'. 
-  Kxecutors  Sc  Administrators  li. 
•  ••  Surety  ''•>. 


IRRELEVANT. 


Slander 


issr:;. 

50. 


1.  Can  the  defrn  Lint  by  his  rejoinder 
put  in  i>-  in  I  distinct 

I'ion  HS-i^aiii^  l)iv:ich- 
•  '  >  •  •).).!•.  of  the  con- 

ait  ion  of:<  •  iry  'uoaJ1    Q 

Afir^i'il  r  **!  '   '  38 

•IK-  Ailui'uiistravit  I 
--  -  Slun  Icr  *. 

.IflX'.F.S  &  JUSriCES. 

Ses  Dill  of  KXCL-;J:;OMS   I. 

JL'DGMKN  T. 

•  .1^:1  1  11  ito  cu'irt  cannot  tn- 

>\\\,   h:it   will   m;iki:   every 

intcn.l.n  -lit    in    s:i;);)orl    of 

•rior  court. 

41 

2.  A    • 

•  .mini 

•  >vcr  the  pciul'.\ 
bin  I  liuvin^'  a  r>!l»ter.ii  con! 
and  .  .1  i>  in  the 

of  tin:    pliiutitT.  or  for   tl. 
of  an 

i  j  it.  //j. 

3.  -   v,  s    tin; 
[il  ii  ••vlailt 
t-j  tli-i  cxtw»t  of  iltc    pciul'.y    ot"  tlij 


bond  upon  \vhu  . 
although  the   defoilint  had   ;>! 
ffciHTiil  |>ri-t«>rni:iii'-'',    utul    vvii1, 
rcplic:«tion  on  tlie  u.irt  of  t!u-  \< 
ai-i^iuii^  breaches  withdrew  the  plea 
and  '  i'-ni.  fh. 

4.   A  jinljjnu-ni  ol>t  incJ  by  a  third  |KT- 

..;.iinst  the  vendor  uf  l:uv ; 
_/?(/<?  niaile  fora  valu.i:>le  consideration, 
//'  w»f  tlii-  nmkinif  the  contract  ^n<l 
the  payment  of  the  money,  cannot 
defeat  tlu-  et|nital)li-  interest  uc<niired 
by  th;-  vcn  K-'j,  nor  is  it  a  lien  on  the 
land  to  alVect  the  ritf'iit  of  such  cattui 
i/'lf  tr:i\! .  /Iii.itjtMiti  i'  fc..'  .64 

.">,    A   j'ld.^inrnt  i-.  u  li.n    on  the    Ian  1  <•!' 
the  <»!i    it    a-,  a 

fund  for  its   payment.     Bnt  th>  : 

f^lnt'j  in  the  l.'iul  is  not  veV.ed  in  '. iio 
judgment  creditor,  ultlioug'h  lie  can 
convert  it  into  money  tosatUfy  hisdc-L»t 
by  pursuing  the  proper  mean*.  /'•. 

0.   If  the  defendant,  during  the  [>• 
cy  of  a  ncire.  fuciu.i  on  a  jn. !_;•.!! 
gviinsl  him,  alic:nhis  laiuU,  the  plain - 
tif!',    after   a  Ji'it    0:1    the    • 
nuy  is^iii;  a  ff  ri  f.ir'in.t,  ;m<l  Ir-, 
the  Ian  Is  so  aliened,  without  p:-<> 
in>,'  a^ii^t  the  alienees.     M'LMerry  v 
S«ii'.  '  •  /. 

7.  Where  the  judgment  of  a  court  he- 
low,    after  a    general    verdict    in   n*- 
SitirifMiif,    was   reveised,   because  of  a 
defective    count    in   tlie   declaration. 

(intnL  C  ll'-dJiltr,  ft  III.  186 

8.  Whether   or  not  land  is   hound  by  a 
judtf.irjnt,    so   far,    as  that  if  A  has  a 
judgment  against  him,  and  bef-r 
edition,  A  oona  }\\$  right  to 
B,  that  C,  the  plaintirT,  in  ty,  on  Jl  ri 

>e  and  .sell  it  without  IH- 
<l uirlng  or  so.  king  tor  olhci-  proper' v  ' 
tfjpktIU  r  */uinj>,  i-t  (i/. 

9.  A  receipt  given  by  the  plaintitf's  at- 
torney for  a  s:iui  of  money,    s'.ated  to 
he  in  full   of  a  ju.lgiiient,  is  not  con- 
clusive  evidence   tint   the  judgm  -ut 
i^    s.itisfieil,    so   far  as  to  prevent  th? 
plain'ilHrom  taking  out  execution  for 
any  balanc."  tiiat  m.iy  be  actually  due 
thereon.    ILi^li 

10.  A  j-i  Ig  n  jut    having  been  obtained 
by  I!  i  .  and    C    his   sui 

ft.  f-i.  issued  thereon  against  K,  w!io 
survived  <  .  :  u;. 1>. 

The    ad'iiinistnitor    of    C.     paid    the 
amount  of  the  judgment  to    K. 
directed  the  judgment  lo  he  ei 
for  the  uso  of  t!ie  admini^' 

i-.-d   for  the 

u-    of  ;!i  •  administrator   of  C,   for  a 

of  the   1. .nds,    was  relumed    un- 

soUl,  uad  \v*a  on  luuUou   of  tlio  d-^- 


INDEX. 


533 


fendant    quashed.     Berry  v  J\~eJinll.i, 

5G8 
See  Attachment  I . 

• Court  of  Chancery  15,  17,  24. 

Covenant  ft. 

Dower  .5,  K 

Executor  DC  Son  Tort  2. 

Kxecutors  &.  Administrators  8. 

"    •  •    Insolvent  Debtor  1. 

JURA  TIRGALIA. 

See  Proprietary  2,  3,  5. 

JURISDICTION. 

1>  Fraud  may  be  inquired  into  as  well 
at  law  as  in  equity;  ami  where  frauds 
are  clearly  established,  the  courts  of 
law  and  a  court  of  chancery  have 
concurrent  jurisdiction.  'Ain^i-.n/  t> 
Tiie  Attorney  Gi-nrral,  487 

See  Court  of  Chancery  J,  33,  42,  43. 

JU1JY. 

1.  Whether  or   not  H  will  was  legally 
executed  is  a  mutter  of  fuct  for  the 
jury.    Hail  v  Glllini^  ,//•*    J,ex?ret   121 

2.  The  jury  are  to  find  when  the  com- 
position money   was  paid  on  surveys 
of  land. 

Hammond  ft  a!.  Lessee  v  A^m.9,     130 
Htttnnnmd  et  al.  Lessee  v  WarjielJ,  151 

3.  The  time   when  a  ceriificate   of  sur- 
vcy  was  returned  to  tlie  land  office  is 
a  matter  of  tact   determinable  by  the 
jury,     llunvnond  ct  al.   Lessee  v  II "ar- 
f.fl'if,  159 

See  Criminal  Prosecution  4,  5,  6. 

Location  of  Lands  11. 

Presumption. 

Variation. 

—  Verdict  1,  2,  3. 

JUSTICES  OF  TIIE  PEACE. 

1.  Where  a  person  acted  in  the  charac- 
ter of  a  justice  of  the  peace,  al- 
though he  tiki  not  style  himself  as 
such,  yet  it  is  pr'niM  facie  evidence 
that  he  had  authority  to  act  as  such. 
Bryiku  v  Ihylur,  396 

L. 

IAC.HES  Sc  LENGTH  OF  TIME. 

L.i.nitation  of  Actions. 
Specific  Performance  1. 

LAM). 

S^c  Judgment  4,  5,  6,  8. 

LAND  OFFICE. 

1.  Parol  evidence  admitted,  with  the 
came'it  nj't he  pariics;  to  prove  the  law, 
practice,  and  usage  of  the  land  office. 
J,  et  al.  Lessee  a  Awns,  13  ] 

VOL.  ii.  70 


2.  I'arol  evidence  is  not  admissible  to 
prove  the  rules,  usages  :md  practices, 
of  the  land  office.     Haiujmntd,  et  ul. 
Ltn-ecv  IVarfidd,  151 

3.  J'bc  courts  of  justice  will  take  no- 
tice of  the  rules  of  the  land  office  as 
forming1   regulations  relative  to  pro- 
perty,   and    will   direct  the  jury  as 
to  the  law  arising  from  such  rules.  Ib. 

4.  The  rules  of  the  land  office  cannot 
be  proved  by  witnesses;  they  are  to  be 
found  on  the  records  of  the  office, 
and  in  the  proclamations  of  the   Pro- 
prietary. Ih. 

5.  Opinions  as  to  the  rules  of  the  lami 
office  cannot  be  received  a.s  evidence. 

H). 

C .  The  us<»ge  and  practice  of  the  land 
office  must  be  proved  by  the  adjudi« 
cations  of  the  judges  of  that  office, 
and  not  by  the  opinions  of  witnesses 
as  to  what  that  usage  and  practice 
may  be.  Jo. 

7.  The  adjudications  contain  the 

legal  information  as  to  what  have  been 
the  usage  and  practice  in  the  land 
office.  Ib. 

8.  To  entitle  the  party,  not  seized  of 
the  original  tract,  to  the  relation  of  his 
grant  to  the  certificate  of  resurvey 
lor  the  vacant  land  included  therein, 
he  must  prove  that  his  certificate  was 
returned  to,  and  in  the  land  office,  at 
the  time  the  junior  survey  was  made. 
Hammond,  ct  al.  Lessee  v  A7>m'a,     l^i> 

9.  VVhere  the  relation  of  the  grant  to 
the  certificate  of  survey  depends  upon 
the  time  when  the  certificate  was  re- 
turned to  the  land  office.     Hammond, 
et  al.  Lessee  v  Warfield,  1  ••  1 

10.  The  time  when  a  certificate  of  sur- 
vey was  returned  to  the  land  office  is 
a  matter  of  fact  determinable  by  the 
jury.  Ib.   159 

11.  Certain  facts  and  circumstances  not 
admissible  in   evidence  to  prove    at 
what  time  a  certificate  of  survey  was 
returned  to  the  laud  office.  Ib. 

See  Grant  41. 

LAPSR  OF  TIME. 

See  Court  of  Chancery  34. 

Limitation  of  Actions. 

Presumption  4. 

Specific  Performance  1. 

LI:ASE. 

See  Estate  Tail  *. 
— —  Evidence  10. 

LEASE  &  RELEASE. 
See  Evidence  10. 


1NDFAV 


LCC.ACV  t  LEGATEE. 
See  Bequest  I . 
Executors  &  Administrators  1,  2. 

LETTER  OF  ATTORNEY 
See  Corporation  •. 

LETTER  OF  CREDIT. 
See  Guaranty  I. 

LEX  LOCI. 

See  Contract 

Distribution. 

-  •  •  •  Foreign  I^aws  *• 

• I-  '• -.tate  1,  ?. 

Personal  Estate  I. 

LIABIHTV. 
See  Surety  1 . 

LICENSE. 
See  Trespass  C. 

Lir,v 

See  Court  of  Chancery  -'4. 
— —    Equitable  Estate  2. 

-  Fieri  ,  6. 
—  '  •    Judgment  +,  5,  6,  8. 

-  — —  Overseer  1. 

••  •      Preference  1. 

LIFE  ESTATE. 
See  Estate  for  Life. 

I. IMITATION  OF  ACTION'S. 

1.  Specific  performance  of  a  bond  exe- 
cuted in  IT1'1*.  f»r  conveying1  a  tract 
of  land,  decreed  by  the  court  of  chan- 
cery in  favour  of  the  heir  at  law  of  (lie 
obligee,  on  bill  filed  in  1792.      lluff- 
n'r'x  devisees  v  DicJewi'*  //"'-,  46 

2.  Where  the  plaintiff  with  title,  having1 
possession  by  enclosure  and  cultiva- 
tion of  a  part  of  a  tract  of  land,  claim- 
ing the    whole,    and   the    defendant 
without  title,  having  possession  by  en- 
closure of  a   part  of  the  same  tracl, 
vith  the  use,  (by  cutting- timber  8tc.) 
of  the  other  parts  not   enclosed,  the 
plaintiff  is  bound  by  the  act  of  limita- 
tions as  to  that  part  of  the  land  which 
I*  in  the  possession  of  the  defendant 
by  actual   enclosure   for  more   than 
twenty   years     next     preceding  the 
bringing  the  ej-ctincnt,  but  not  as  to 
the  parts  uw?d  by  t!i 

rior  to  thr  enclosure.    C'fuiney  r  / 
gnhl  rf  nl    fs.ixtr, 

3.  The  art  of  limitations  did  not  attach 
or  run  :«  r.ord  Proprietary 
on  iinv  possession  of  v-xcant  lands.    //*. 

4.  No  adversary  possession  of  land  run 
avail   against   t!ic  bUtc.       Hall  v  (Ht- 
tingt  Jr$  La**,  112 


5.  An  adversary  possession  commencing 
o^-ainst  the  Lord  IV 

-• 

act  of  '•.  ntisi-.ition.  In. 

•'hinif   but 

:    a  title  UK. 
under  a  grant.  Jit.  UV 

7.  A   person  out  of   possession  for  more 
than  twenty  years,  w  Inn-  then 

nn    adversary    ]  in   \irtueof 

some  right  or  by  actual  t-iu-lo-.uri-s, 
liis  heir,  or  p-  under 

him,  muy  bring:  ;HI  '.  '.  ithout 

an  actual  entry  into  tlic-  land.  Jfuin- 
l)li>n  'I'lirfnlil,  l."..i 

8.  A  naked  posse-won.  >i  witli- 
out   rij^ht,)  is   only  to  the 
extent  of  actual  er.clovi.  lb. 

9.  In  (unimj'ixit  i<  :  .  !.»!ionr,  )<•<• 
»Ct  of  limit;,;i  ,;is    was  pK:ided  — 
that  evi.li  lice    ot':i:i  ^im-nt 
by  tlie  defendant  that  the  plain1  •• 
berformed  work    for  him,  bi:t  that  he 
had   an  account    in  bar,    and    wii.-n  a 

nl    who     was   tiu-ii    up    the    hay 
shoiild  come  to  town,  he   would  havft 

.»;ion  of  t!ie  act  of  limi- 
tation,.     /'.  •    r    (';,;».•<:  y'v  ai/in'r.     S'j7 
1C.  Where  the  defendant  was  in  | 

sion  of,  and  holdinc,'  a  slave  tor  the 
space  oftt:  .ut.T.edcnt  totlic 

institution  of  an  action  of  replevin  a- 
p-ainst  him  for  the  slave — HtMt  that 
the  net  of  limitations  v.  .is  a  bar  to  the 
plain'.!, i\  !vco\vrv,  notwithstanding 
tin-  j)n>[>crty  in  the  .--lave  had  been  in 
the  plaintiff,  and  the  slave  was  loaned 
by  him  for  an  indefinite  time  to  J  S, 
who  during  that  loan  sold  the  .slave  *o 
the  defendant!  and  although  the  suit 
u;i,  brought  within  three  years  from 
the  time  the  plaintiff  knew  of  such 

Jtntric  i 

11.  Where  the  defendant  in  an  action 
of  ejcctm-i.t  v.  .1,  in  possession  <i 
100  acres  of  land,  by  enclosures  and 
cultivation,  P,>r  l.S  years,  and  tl,. 

I  liis  en.-!'  I  to  include 

150    acres,    and    he    pos^ 
same,   so  enlarged,  by  enclosures  for 
6  years  th  Aiming  the  sami; 

as  liis  own — IfrM,  that  he  had  title  to 
th--  l!)')ai •:•  possession. 

//  3yi 

,   4,  5,  J8. 
——  Possession   5. 

I.fMITATFOV   OF  r.STATE. 
See  Executory  Devise 

I.OC  \TION  OF  LAV 

1.  If  the  testimony  of  a  witness  is  in- 
tended to  be  objected  to  because  of 


INDEX. 


553 


his  holding1  adjoining  land,  &c.  his 
interest  must  be  located  on  the  plots. 
ffaU  v  Oittings  Jr's.  /,<•.••.•'«••,  120 

2.  The  declarations  of  a  former  holder 
of  adjoining'  lands,  as  to  the  hounds 
of  the  land  in  dispute,  i:i  an  action  of 
ejectment,  admitted  in  evidence,  it 
not  appearing-  hy  the  plots  that  lie 
WHS  interested  in  establishing  the  fuels 
related  by  him.  fit.  12  i 

3.  A  deed  located  on  the  plot?,  and  not 
counterlocated  by  the  opposite  party, 
may  be  read  in  evidence  by  the  party 
locating  it,  to  show  how  it  is  located; 
but   when  its  validity  comes  in  ques- 
tion,   if  it  is  had,  it    is   to  have   no 
effect,     lluiiinwnd  el  al.  Lessee  v  Acr- 
m,  loO 

4.  A  deed  for  a  certain  number  of  acres, 
part  of  u  tract  of  land,  without  metes 
or  bounds,    but  referring1  to  another 
deed,    (not    produced,)   to  ascertain 
Ihc  same,  is  not  legal   evidence   to 
F!IOW  title,  or  to  support  the  location 
thereof    on   the  plots,    without   pro- 
ducing the  deed  to   which  it  refers. 

lb.  142 

5.  Where  there  is  but  one  location  of 
the  beginning  of  a  tract   of  land  on 
the  plots,  and  that  is  counterlocatcd, 
the  jury  cannot,  by   reversing  lines, 
&c.    ascertain    a   different  beginning 
for  the  plaintiff  than  that  located  hy 
him.  lb.  148 

6.  The  plaintifiTin  ejectment  must  make 
such    locations   on  the   plots   of  the 
land    claimed,   as  will  suit   his  case. 

Jb. 

7.  The  jury  cannot  find  a  location  of 
their  own,    but   if  they   find  for   the 
plaintiff  they  must  find  some  one  of 
the   plaintiff's  locutions  on  the  plots. 

lb. 

8.  Where  the  first  and  second  courses 
of  ah  original  grant  of  a  tract  of  land 
called  JJ  F,  are  described  as  ".begin- 
ning- at  a   bounded  locust  tree,  being 
the  N  E  hounded  tree  of  P  U's  land, 
[called  tfC,]  and  running  by  the  land 
of  the  said  P,  &  65  ps.  to,  u  hounded 
oak,  then  N  E    150  ps.  to  a  hounded 
red  oak  on  the   said  P's  land;"  and 
the  first  and  second  courses  of  an  es- 
cheat grant  of  the  same  land  called 
D  /',  are  professed  to  be  run  in  the 
same  manner — //<;/;/,  that  there  is  no. 
doubt  or  am!>ig-m<  y,  and  uiat  if  the 
beginning  of  1)  T\A  rightly   located 
on  the  plots  at  the  termination  of  the 
12th  line  of  U  (',  and  there  is  no  evi- 
dence of  the  existence  of  any  tree  as 
called  for  at  the   termination  of  the 
tot  line  of  D  F,  then  tiic  expressions 


in  the  escheat  grant  hind  that  grant 
to  the  true  location  of  the  original 
tract  called  J)  F,  as  to  the  first 
lines  thereof,  so  far  as  the  second  line 
of  the  original  did  actually  extend; 
and  that  the  first  and  second  lines  of 
the  original  tract  do,  by  virtue  of  the 
expressions  therein  used,  bind  those 
lines  on  the  13th  and  14th  lines  of 
UC.  Sec  On  A  XT,  30,  and 
Jl(>u:ard  v  Mouk,  et  al.  Lessee,  26.3 

9.  Where  the  plaintiff  has  not  located 
his  escheat  grant  on  the  plots  co-ex- 
tensive with  the  location  of  the  origi- 
nal tract,  he  cannot  give  evidence  to 
extend   his    pretensions  beyond  the 
lines  and  limits   he  has  given  to  the 
escheat  grant;  but  he  is  estopped  by 
that  location  from  going  beyond  the 
letter  V,  located  on  the  plots,  from 
whence  he  must  run  to  the   head  of 
.Howard's  branch,   at  whatever  point 
the  same  may  be,  agreeably  t»>  his  lo- 
cation of  his  pretensions,  and  the  lo- 
cation' by  which   the  defendant  haa 
taken  defence.  lb.  26G 

10.  The   plaintiff  cannot  give  any   evi- 
dence of  the  lines  of  his  escheat  grant 
running  otherwise  than  he  has  located 
them  on  the  plots   as  his  pretensions; 
but  lie  is  not  precluded  from  giving' 
evidence  of   any  other  lines  as  the 
lines  of  the   original  tract,  by   way  of 
illustration:  and  he  may   support  the 
location    of  his  pretensions,   so  far  as 
he   can  show  that  they  are  located 
within  the  limits  of  the  original  tract^ 

lb.  -267 

11.  The  court  directed  the  jury,  that  they 
might  find  the  true  location   of  D  Pt 
for  which  the  ejectment  was  brought, 
by  a  greater  or  less  variation  of  the 
compass,   as  might   appear  to   them 
proper  from  the   evidence,  provided 
that  by  such  allowance  of  variation, 
they    did  not   enlarge  or  extend  the 
plaintiff's  pretensions  beyond  the  lo- 
cation of  his  pretensions  made  on  the 
plots,  or  beyond   a  straight  line  to  be 
drawn  from   the  letter  V  to  the  head 
of  Howard's  branch.  lb.  27* 

12.  The    court   directed  the  jury,  that 
the  plaintiff  could  not   recover  any 
land  which  should   be   found  to  lie 
without  a  straight  line  to  be  drawn 
from  tlie  letter  P"to  the  head  of  How- 
ard's branch,  (he  having  located  that 
line  of  his  grant  in  that  manner,)  altho' 
those  lands  sh.ou.ld  lie  within  the  lines 
of  the  tract   of  land  for  which  the  e- 
jectmi-nt  was  brought,  and  also  with- 
in the   lines  of  the   plaintiff's  preten- 
sions as  located  oatlie  plots.    Jb.  275 


030 


INDEX. 


13.  The  coort  refused  to  direct  the  ju- 
ry, that  it'the  plaintitt  .1  fmm 
Mio\\iri£  the  true  !oc:.tion  ol  th«-  l:tiul, 
for  which   tlu-    i  jecUiu  nt  is   brought, 

-cut  fiom  \  -'i-d  b\  h;'ii 

for  liis   fir.  .    so  as   to  p; 

linn  from  recovering  what   :s  contain- 
ed in  |,is  ;  -  within  the  true 

•ion,  the  defendant  is   alsu 
pul  from  saying  that  the  true  location 
iid.lfcn.-nt  fioin  the  location  given  by 
tin-  plaintiff.  H-. 

14.  Where  a  dec<l  for  part  of  a  tract  of 
hud  has  not  been  particularly  located 
Oil  the  plots,  it   may   be  read   in  evi- 
dence if  the  whole  tract  of  hmi  is  n- 
nitcd  in  the   same    person,    and   the 
vholi -has  been  located.       JiullvGit- 
lin^s'a  Lessee,  383 

15.  1  tie  declarations  of  a  deceased  per- 
son, then  «.ei/ed   ot  a  particular  tr:>ct 
of  land,  not  located  on  ihe  plots,  were 
offered  in  evidence   by  the  defendant, 
in  an  action  of  eject incut,  to  prove  the 
end    of  the    hr.-t    line    of  that    tract, 
which  was  the    beginning  of  the  land 
claimed  and  located  on  the  plots  by 
the   defendant— //(./</,  that  the  decla- 
rations  wtJe    not    udmin&ible   in    evi- 

.^c.  76.393 

16.  In  trespass  q.  c.  f.   the  defendant 
took  defence  for,  and  located  on  the 
plots,   a   Unct   of  land  called     fl    (\ 
vhich  included  a  tract  culled  T  N,  on 
vhich    the    trespass    was    alleged    to 
have  been  committed,  and  whicli  hut 
tract  the  plaimiti  located  on  the  plots; 
Jtnd  he  also  locutcd  lot  N<>.  3.351,  but 
he  did  not  coiuucrlocate  the  location 
niafie  1-y  the  defendant.      The  defen- 
dant  read   in   evidence   tlu-    I;T  uit  '.f 
d  '  ,  which  called  tobe^in  at  the  end 
of  the  second  line  of  lot  No.  3351. 

',  that   it  was   not    necessary    for 

him  to  produce  the  ^rant  of  lot   No. 

:,    to  prove   the  location    of  that 

lot,  and  the  beginning  of  6f  C.    'J'm/t- 

•i   l  ]{>Zt.r,  -141 

17.  If  the  beginning  of  a  tract  of  land 

is  lost,  or  cannot  be  proved,  then  it  is 

to  be  found  by   reversing   the   lines 

from  the  first  known  *nd 

boundary.      IL.iuvwud d  ol.  Lu>sce  v 

Xorris,  149 

See  Evidence  54,  64. 

Grant  33,  34,  35,  36,  37,  39. 

V  umtion. 

Vtrdirt   1,  2,  3,  4,  5. 

!>    1'KOI'KIETAKY. 
See  Propricury. 


F  DKED. 

See  Evident  71, 

M. 

MAM  >'. 

1.  PHT' '  .-milted  to 

tl.ul   :i   dei'd    «>}    r:>i>niin^>ii)ii  was  at- 

•i    in    the    ;  F  Hr«    v  u- 

1   the 

saiiK  1T6 

2.  A    deed   of  nianun.i.sMon   »m.ler   the 

art   ..'  '<  <l    ill 

the     p:  i  •»«.  in  '•    «'t'    only    <n 
will  •  to  ^i\e  irredom  to 

the  slaves  tin  nil)  n  •  Jb. 

3.  A  pnrol  salt- ot'x  .sl:«\  • 

and  then  to  be  sit  free  and  iiMiiunm- 
ted    by   the   vendee,  \vho,    on  tl 
pirutton  of  the  - 

a  deed  of  nunuiBUaaion — II- Id,  that  it 
•  ullieient  t(>  ur:..iii  fi<  •  ili'in  to  the 
slave.     A'^ro  ( 

MAKKKT  OVFKT. 

J.  The  pu;-'  :  ;jiibl'C 

mark  -iicd   l>y    law    for   the 

sale   of  horses,  kr.    dn-s    not   • 
the   purchusir  10  lui'ui   tl, 

'.   the  claim  ot  the  true  <• 

•^ill,  308 

2.  There  is  no  //<;./ ktt-^nd  in  tl.^ 

lij. 

MARRIAGt:. 
Set  Evidence  56. 

MKMOUANDUMS. 
See  Evidence  y. 

METLS  AND  BOUNDS. 
See  Grant  37- 

MISDEMEANOR. 
1.    Fel'nii/    I'.r.-l 

joined  in  the  same  indictr. 
c  T/iC  Mutr, 

MISTAKK. 
See  Court  of  Chancery  46. 

• 

Ml  III.  V  liON    01    I.AMAGCS. 
See  Covenant   I. 

MIXED  POSSESSION. 
• Possession  1. 

MO! 

).  Parol  evident 
a  dcLit  atcaicd  (>)  montage  wae  con- 


INDEX. 


537 


tinental  money,  allhough   expressed 
to  be  a  specie  debt.     Wtiftkington  v 

JiictiM-U,  58 

2.  It  there  is  a  mortgage,  with  a  perso- 
nal covenant  by   the   mortgagor  that 
hr  will  pay  the  money,  and  he  assigns 
his   equity    of  redemption,    is  he   a 
competent,  witness  for  the  assignee  to 
pi-ox  e    that    the   money  loaned   was 
continent*]  monev  ?    (^uere.  Hi. 

3.  'I  lie  assignee    of  a  mortgage  is  enti- 
tled  to    the   sumc    relief  which   the 
mortgagor  xvould  have   been  entitled 
to  against  the  mortgagee.  lb. 

4.  Vv  here  certain  facts   would   not  war- 
rant the  presuming-  a  mortgage  made 
in  1706  xvas  satished  before  178^',  the 
mortgagee   being1  a  Eritiiih.   subject, 
and  although  he  was  never  in  posses- 
sion of  the  mortgaged  premises — the 
party  not  showing-  uny  tiile  under  the 
mortgagor.     Owings  v  Norwood's  J.t*- 
geet  96 

,5.  Where  lands  were  mortgaged  to  a 
lifitixh  subject,  on  failure  of  payment 
of  the  mortgaged  money,  a  complete 
legal  estate  vested  in  the  mortgagee, 
liable  to  confiscation,  SMK!  was  vested 
in  the  state  under  the  acts  of  confiscati- 
on, subject  to  the  right  of  redemption. 
The  British  treaty  cannot  operate  on 
such  a  case.  Ib. 

6.  A  deed,  purporting  to  be  absolute, 
for  the  conveyance  of  land  and  perso- 
nal property,  was  held,  as  intended, 
to  secure  a  debt,   and  the    party  per- 
mitted to  redeem,  &.c.  See  COLBT  OF 
t.  IIA.VCKHY   2',',   and 

Broaden  v  Waffteft  Ex'r.  fc?c.  _      285 

7.  A  mortgage  of  lands  to  a  British  sub- 
ject before   the   revolution,   wi.s  not 
thereafter  defeated  by  the  act  of  con- 
fiscation, but  it  wus  protected  by  the 
Uritixh  treaty,  and    dicrecd  to  be  sold 
to  pay  the  mortgage  debt,     tfouoord 
v  Mo'ak  tt  al.  Lcusee.  25$,  259, 

fnotcs.J 

8.  If  a  mortgage  of  slaves  xvas  subsid- 
ing, and  the  mortgagor,  claiming  the 
absolute    ownership     of    them,    sold 
them  fora  full  consideration,  although 
as  to  the    mortgagee    the  sale  would 
transfer  only  the  equitable  interest  in 
the  slaves,  yet  as  between  the  vendor 
and  vendee,  the  operation  of  the  con- 
tract would   be  to  pass  the  absolute 
ownership  in  the  slaves  to  the  vendee; 
&.  notwithstanding  the  after  discharge 
of  the  vendor  under  an  insolvent  law, 
and  his    purchase  of  the  slaves  from 
the  mortgagee,   his  subsequent  acts  in 
perfecting1  his  title  to  the  slaves,  will 
enure  lu  law  to  confirm,  and  nut  10 


defeat  his  contract  with  the 
J'i/t-n/1  GaXKttVftl/i  411 

&••  Application  of  Payments  !,  2. 

-   Court  of  Chancery  o,  20. 

—  —    J-:jectn<eni 

—  Jvjtatc  Tail  5. 

MUTUAL  COVENANTS, 

See  Covenant  3,  4. 

N. 

NATURAL  GUARDIAN. 

1.  \Vhcre  a  mother,  as  tlie  natvralgWtr- 
dian  of  her  infant  cliihlreii,  who  were 
under  the  age  of  1  1  yi.are,  hired  u 
slave,  belonging  to  them,  u>  a  :>ta  cap- 
tain, to  pcrionn  a  voyage,  on  wage?, 
the  slave  to  be  returned,  SwC.  and  Unr 
vessel  being  sold  by  her  owners  at 
the  port  to  Which  she  sailed,  the.  slave 
was  put  by  the  captain  on  board  ut 
another  vessel  hound  home,  and  fur- 
nished with  provisions  for  the  voyage, 
but  never  returned  home,  in  an  ac- 
tion of  froi-fr  by  the  children,  prose- 
cuting by  their  pruc.hiin  uwy,  against 
the  captain,  for  the  value  of  the  slave 
—  Held,  that  the  action  was  veil 
brought.  Hay  ct  al  v  C-wn-r,  ;]•*/ 

NO  ASSETS. 

See  Pleading  1,  3,  4,  o. 

NOMINAL  PLAINTIFF. 

Sec  Judgment  2. 

NON  EST  PACTUM. 

1.  A  executed  a  bond  to  H,  and  deli- 
vered it  to  C,  to  be  delivered  to  B— 
Held,  not  to  be  the  act  and  deed  of 
A,  it  not  having  been  received  by  li. 
Owing*  v  Aw  uiovd'n  Lessee,  lOtf 


NON  RESIDENT. 
See  Ackno\\  Icdgment  i>t  Deeds  3,  4. 

NOTARY  PUBLIC. 

1.  The  minutes  of  the  proceedings  of  a 
notary  j)ul>hc  of  a  iori  ign  covtntn, 
are  to  be  consult  re  -d  as  lecoms,  un- 
der the  cnrtesy  of  nations;  and  a  co- 
py, under  the  h»i;d  and  notarial  se:vl 
of  a  notary,  is  sufficient  evidence  of 
the  protest  of  a  foreign  bill  of  ex- 
change. Jirydcn  v  Taylor,  3i*9 

Ste  Authentication  1. 

NOTICE. 

1.  In  executing  a  commission  issued  to 
a  foreign  country  for   the  purpose  of 
,  notice  is  nut  nctcs- 


£53 


IN  Hi 


.  but  time  should  be  pivcn   that 

:  ty  infill  i. 

trri'  -    -      u'tWa 

Luxe,  9» 

^•arrant  of  resurvey  taken  out  by 

a  p.  ,  M-izefl  of  the   orijpn.il 

.  .il  notice  of  the  loeati- 

on   .it  tin   wunuu.     liuiniiHtnd  ft  ul. 

Ltif 

•'ii»id  <ttil.  Jstfset  r  H'urfrlJ,  151 
.1.    \\hrre\acant    land,  not   contiguous 
to  the  original  tract  rcsurveycd,  i>  in- 
rltidcd  in  a  certificate  "t   I--MU 
i>  not  k-tf.il   notice  of  the    locution  of 
the   warrant,    until    the  certificate    is 
rcturm  <1    to    the   land-oflice. 
niotu/  t!  i-  •••/(/,          1M 

4.  It  not  appearing  In  tin.  return  of  the 
commissioners  to  u  commission 
oil  to  Pcnnsylt  •««»</,  to  take  testimony, 
that  they  had  given  any  notice,  or 
tu:.t  proper  notice  h:wl  been  given, 
the  testimony  taken  thereunder  was 
rot  permitted  to  be  read  in  evidence. 
was  it  evidence,  altlio'  oH'ered 
by  the  o;.'p.'!>ite  party.  Ji« 

'•//,  45  y,  4oU 

Set  Court  i  •   45. 

—  —   Designation  1. 

-  Equitable  Kstate  1. 

•  •      Warranty. 

0. 

OFFFCF.  COPY. 
Set  Evident 

OFFICK   FOUND. 

1  Lane's  esch<-:it»d  to  the  state  vests 
without  oj/ic  r  fi-<t»(j  or  an  actual  cntiy. 
Hall  t  Gtttin^s  Jr's.  1.  l^ 

Set  Confiscation  i,  4,  5,  0. 

OFFICIAL  ACTS. 

J.  The  <  h-;k  of  a  cunt  li;i->  MO  itttthori- 
ty  by  law  to  ra-fify  <i  fad  under  s'  :•-!. 
-int    is  to  grant  exemplification* 
/'••  ..u>ri*t     lol 

y,  I?. 


ORPHANS  COURT. 
See  Executors  &  AdministratoH. 


ONUS   I'KOliANDI. 
See  Court  of  Chancery  4l;. 

-  J'leatliv 

-  Flcne  Administravit  I. 

OPERATION  OF  DEEDS. 
See  Grant*,  II,  I*,  »5,  :i. 

ORDINANCE. 
Stt  Repeal  1. 

ORIGINAL, 

Evidence  »*'•,  •-,  '•->. 


o\  I;K>* 
1.    An  overseer  cannot  rHmn  a   p 

the  crop  madr  on  :»  pjantation   -»  hn 

aliare,  un.ler  an    u^ri  i-;n  n«    w  itli    In. 

fiii])l'jyer  that  !.• 

j,.,rt    ot    Hi-.-    i-rcp    in  ad  (  . 

TKOVCR  2,  ar.d 

H  trnw  f  Mutitiigl,  365 


OYKK  Sc  TKKV.INER,  ?cc. 
See  Court  of  Over  J*  'i  ci  miner,  ^c 

P. 


PARISH 

&X  Evidence  46,  5G. 

PAHOL  A(.HF.KMKNT. 
1.    A  parol  contract  bctweti;  a  fa 
law   ami  son-in-law,  that  tlio  former 
would  give  a  real  estate  t, 
son,  in  consider  ui'in  oi'  th.-  v  n-.u-lavv 
pa\ing-   one    half  of  :  «'!'  tlie 

land  —  No; 
sion    was  helil  by  the  son-Nt  l.i 

]):.i'l    of    the     pun  -ii^sc     IIIUIKV     p.iid. 

n'iitipu't  v  Duil,  76 

"2.  VV  1)  becoming  an  insolvent  <i 
his  real  estate  \vas  sold  l)y  his  !: 
and   purchased  by  C  1),   to  wh..m  \\ 
deed  was  executed.     C  D,  in  making 
the  purchase,   :-.t  ted  pn-fcsiedly  as  a 
triei.d  to  \\   1),  so  K.r  that  if  lie  could 
procure  the  purchase  money  within  a 
reriain  time,  he  was  to  have  the   be- 
nefit of  the  purchase;  but  as  he  could 
not  raise  the  money,  it  In  . 
to  sell  a  pall  of  the   j 
reimburse   C    1)  —  which    p:-:t    U     l», 
and  M  his  wife,  vvt-iv 
serve  to  thcmsehes,  ami  were  anxious 
to  procure  a  friend   to   become  the 
fiuicha-i-r  for  and  on  belmlf  of  M  the 
wiff,  and  as  a  trustee  for  her.    WhicU 
intention  was,  jjrcvious  to  th-.- 
made  known  to  \\  \\  ,  who  approvv<l, 
»nd  it  was  agreed  tl^t  .1  :-,  i  \.  !io  con- 
•vntcd,)   should  be  '..  1  pur- 

chaser,   and   U   \\    wus  ;o  bf-ci  • 
surety    for  tl.e    payment  of  tli- 

•  -\  .     .1  ^    In  <.  ime  the   pur- 
i  it  was  known  and  under- 
stood at  the  time,  that  he    put. 
for  M,  the  wile  of  \V  U.    In  the  bond 
for  the  purchav 
Mir.-u   1'ii'J  S,  j'.ml  ; 
pru  |    been  in  ^V    13, 

who  jirocurinir  ..-  purchase 

nioiu-y,    ap;)li«-'!  "•  ){    \\   tC    •    ''ain  a 
bond   of  conve\ancc  from  C'  I" 
the  wife,  for  the  property,  w  •!. 


INDEX. 


539 


V  us  informed  by  R  W  that  he  had  got 
a  bond  to  himself,  as  J  S  ha.il  given  it 
all  up  to  him,  and  that  W  1)  had  no- 
thing1 to  do  with  it.  J  S  had  been  in- 
duc.ed,  in  order  to  secure  it  \V,  to  di- 
rect C  D  to  give  a  bond  of  convey- 
ance to  II  W,  who  assured  J  S  that 
no  advantage  should  be  taken  of  \V 
I),  and  that  when  he  paid  the  pur- 
chase money,  a  deed  should  be  exe- 
cuted to  his  wife  M.  The  premises 
were  conveyed  by  C  D  to  11  W,  who 
brought  an  ejectment  against  W  D. 
The  amount  of  principal  and  interest 
of  the  purchase  money  was  tendered 
by  W  L)  to  II  VV,  and  a  deed  detmnd- 
ed,  which  he  refused.  \V  D,  and  M 
his  wife,  filed  their  bill  against  R  VV, 
to  be  quieted  in  their  possession  of 
the  premises,  and  to  compel  a  con- 
veyance from  him  to  M  the  wife  — 
Ikcrccd,  thut  It  \V  convey  the  land  in 
question  to  W  D,  a;iu  M  his  wife,  in 
fee  simple,  and  that  an  account  be 
stated,  &c.  and  the  balance  due  be 
paid  at  the  time  H  VV  shall  convey 
the  land.  Davis  et  ux.  v  Walsh,  ^29 
Stf.  Contract  3. 

—  -  Covenant  1. 

—  —  Warranty. 

PAKOL  EVIDENCE. 
J  .  Farol  evidence  admitted  to  prove 
that  the  land  granted  to  the  husband 
of  the  demandant,  is  the  same  land 
of  which  dower  is  demanded.  Ksefer 
v  Young,  53 

2.  Parol    evidence  admitted  to  prove, 
that  a  debt  secured   by  a  mortgage 
\vas   continental  money,  although  ex- 
pressed to  be  a  specie  debt.      jf'orth- 
ingion  v  Bicknell>  53 

3.  Pavol  evidence  is  not  admissible  to 
prove  that  a  tract  of  land,  mentioned 
in  a  certificate  of  survey,   never  was 
actually    surveyed  by    the    surveyor, 
&c.      Hainiuofid  ct  al.  Lessee  v  jVw-m, 

132 

4.  Parol    evidence   admitted,    with  1lie 
consent  of  the  parties,   to   prove   the 

,  usage  and  practice,  of  the  land 
' 


5.  Parol  evidence  is   not  admissible  to 
prove  the  rules,  usages  and  practices, 
of  the   land  office.     Hammond  et  ul. 
Left.iec  v  Warfitld,  161 

6.  Parol  evidence  not  admitted  to  prove 
that  a  de.-d  of  manumission  was  at- 
tested iu  the  presence    of  two   wit- 
nesses.    Nfgi-o  James  v  Gaither,   176 

7.  Parol  evidence  admitted  to  prove  the 
manner  in  which   wills  are  made  anil 
proved  in  France*     D&  Sobry  v    Ter- 
rier, 191 


8.  A  surveyor's   original  books,  and  his 
parol  testimony,  admitted  by  the  ge- 
neral court  as  competent  and  admis- 
sible evidence,  to   prove  that  a  certi- 
ficate of  survey  returned  to  the  land 
office  was  forged.     Borelng's  Legatee 
v  tilngery,  45J 

9.  The  court  refused  to  direct  the  jury 
that  it  was  not  competent  in  a  court 
of  law  to   give  evidence  to  the  jury, 
or  to  go  into  any  parol  examination  of 
the  surveyor  or  his  books,  to  vacate  a 
grant,  or  to  prove  that  the  certificate 
of  survey  returned  to  the  land  oflic.ft 
as  a   foundation  for  the    grant,    \;-±--, 
forged  or  fraudulent;  and  not  made 
out  by  him,  or  his  authority.     /A.  458 

10.  There  being  no  designation  of  part 
of  a   tract  of  land    contracted   by    a 
bond  of  conveyance  to  be  conveyed, 
nor  any    description  whereby   it  can 
be    id'-ntihVd,  parol  evidence  is   not 
admissible  to  show  that  it  was  intend- 
ed by  the  parties  to  he  laid   oil'  in  a 
particular  manner;    and  the   bond    is 
void  tor  uncertainty,  except    on    the 
principle  of  election.  Huntt  &  Park* 
r  (}>*t  ct  al.  49S 

See  Covenant  1. 

Fieri  Facias  2. 

PARTIES  &  PRIVIES. 
See  Ejectment  24. 

Evidence  28,   78. 

PARTNERS  AND  PARTNERSHIP. 

1.  Where  a  person  was  frequently  st-eii 
in  the   counting-house   of  the  plain- 
tiff, transacting  business  as   a  princi- 
pal, and  was  generally  supposed,  be- 
lieved and    understood,  in  the  town, 
to  be  a  partner  in  the  plaintiff's  house, 
it  is  not  sufficient  evidence  to   prove 
that  such  person  was  a  partner  of  the 
house    of   the    plaintiff.      Dry  den  v 
Taylor,  400 

2.  A  bond  given   by  one  partner  for  a 
simple   contract   debt  due   from  the 
partners    to  a  creditor,    and  accepted 
by  him,    is  by   operation  of  h»w  a  re- 
lease of  the  other  partner,  arul  an  ex- 
tinction   of  the  simple  contract  debt, 
at  law  and  in   equity.       William  v 
Ifody?ont  474 

3.  Ignorance  of  the  law,   as  to  the  con- 
sequences  resulting   from  a  creditor 
having  accepted    the  bond    of  one  of 
the  partners     for  a    simple    contract 
debt  due  from  the   partnership,  can- 
not excuse  or   form  a  ground  for  re- 
lief in  equity.  //,. 

4.  Such   a  bond,  altho'  not  bind- 
ing' oatlip  partner  who  did  not  exc- 


JXIHA. 


1'ATl 


!•  \v\jr\T. 
See  Application  of  Payments  1,2. 


&e  Evidence  56. 

PKKFOKMAVCE. 

M-t. 

'•ant   ",   4. 

-  Specific  Performance. 

PBfePBTUrtT. 

See  Executory  Devise  I. 

PKKSOXM.  I-^TATE. 

'     property   a''  hen-;    to    the 
ji-rsini:    an  1  wherever  tl: 

-cil  at  the  tiiiu-  of  his  death,  the 
r»f>p'-rlv  isto'i-  I'-':  IVi'.  ,!  accord- 
it>_-  •->  th<-  ]•••«•«  of  that  country 


pi.uvni-F. 

$rr  (VsM?  Q  H-    Use   1. 


PI.K  M)IXG. 

1     Wlx-ther  or  n  !:r 

•  T'r>;n  t'ic  pl'-a  of  per- 
.nccili  :tn  :ir>i-)'i  ->n  a  tfiUmellt:i- 

iv     .  I    v  Blade  '.i 

«8 

!>v  his  rci 

;i  i-ssiic  tvi  •.  ui.l  'list'mrt 

to  :i  replir  .'m^  I)  reach  - 

.nd'  QiUff. 
11.. 

?•.  On  t'lo  plea  of  nn  a*>"-h  or  /)'''i«  a</- 
.://•'  lies  on 
•ftlic  pl:ii:»tirt'.      .'/, 

2SI 

-  i  mo  in 
V-  pLa  o,  "/»'(.!•.  u-l-n' 

//. 
5-  Th 

am!  a  surrt-j-iindor  thereto 

38 

!iat  an 
ire  h« 

"i  the 
•  TiSle 

!.y  t  ,  of  it  on  UU 


pK-u  of  tfener.t!  pcr'"ori)-mcc.    -.• 

!  lii-<  ri-joindcr  to 
the  rcj)!ic:»tiou  of  tin-  pl:«i:. 

;!ic    breach.      '.'  v    I1\t 

11 

•..rnt  on  a  {jmorul  ver- 
dict in   a--v .'«.•« />»*'«'  w.  :,    he- 

co'iiH  in  '' 

cl:X".  .    186 

"ii  •[. 

Plfiur  Ailininistruvit  1. 

Preference  3. 

PU:NF.  ADMIMSTHAVIT. 

1.    On  th  •  i'Mi"  _;->i:i>-.i  to  a  |jlca  of  plrnr 
•'.i!<-lrtir!ft    tin-    pl.iiniiit'   di.'l    iiot 
oll'i-r  <  v  ill- -nrt-  \vhiclv 

h.iil  .-'.nif    to  the   han-K  i" 
<l.iiit  -,  t'.sat   it 

\v  fs  neci  wan  for  the  plaintiff  to  show 
th.it  a-isets  h;ul  co'ne    to  the  h.<; 
the  executors;  and  that  the  plea   \v:<s 
notjna  Imissiou of  •»<,-<  N <<> tli.-.uiioiiiit 
f)f  i!ie  pi.iintiti  .'ihovijfh  the 

'ili.'-s  iliil   in>t  ;)r<»\f  the  contrary 
by  the    pi 

r  evidence 

I  ux.  281 

See  Pleadings  1,  3,  4. 

PLOTS. 

1.   A  private  plot  ot'tlu-  lan.ls  in  dispute. 
p«-niiitte:l,     ntrtcr     certain     ciro.nn- 
st.inrcs,  to  be  read  in  evidence 
aril  i-  Mj'tif,  ct  til.  1.  26S 

&•<•  Location  of  Lunds. 

Ilecord  1. 

POSSESSION. 

1.  Where  two  p  in    mixed 

NMOII  oi'  th  I,   the   OIK: 

by  right,  and  thi-.  other   by   wron^,    i» 
is  tli  ,i  of  him  who  is   in  by 

ri^'ht.    Ifnll  r  I' 
1  .        H7 

• 

of  rijfht,  and  a   ' 
cannot  be  de;j.'ived   o!"  !i;> 

• 

of  tlie  land—  tint  is   he  who  h.ith  tin: 
jm  iMHSCiiaioiiia.     Hall  v  Giltin^v,  Jr.* 

i  out  of  possession  for 
than  is  not 

.-y  possession   in   virtue  of 
•  right  or  by   actual  c ncl  ' 
h'n   hci:',   or   p.  under 

liiin,  tnav  briivv 
an»ci'i:d  '-:ilrv  into  the  land 

i  with- 

-iry  to  the 

ex:-  .     ul  eticloi'if«9.  lb. 


INDEX. 


561 


5.  Where  the  facts  offered  in  evidence 
by  the  plaintiff*  were  not  sufficient 
and  legal  evidence  to  Warrant  the 
jury  m  iinding,th:it  a  person,  under 
whom  the  plaintiff  chimed,  died  seiz- 
ed of  the  bud  for  which  the  eject- 
ment was  brought,  in  opposition  to 
60  years  possession  of  the  defendant 
— the  strongest  presumption  of  a  good 
title  being  in  favour  of  the  defendant. 
JDovis'g  LtKxee  v  Davis' s  Heirs,  295 

C.  A  parol  sale  may  be  mnde  of  a  slave 
for  a  term  of  years,  and  then  manu- 
mitted by  the  vendee,  under  an  agree- 
ment between  the  vendor  and  vendee. 
Aegra  Cato  v  Howard,  323 

7.  If  the  possession  of  land  has  gone 
agreeably  to  un  ancient  deed   which 
needed  no  enrolment,  the  inspcximus 
of  the  deed  may  be  read  in  evidence, 
and  is  effectual  to  pass  the  land.  Hall 
v  G  lit  ings' s  Lessee,  380 

8.  Where  the  defendant  in  an  action  of 
ejectment   was  in   possession   of  1UO 
acres  of  land,  by  enclosures  and  cul- 
tivation, for   Id  years,   and  then  en- 
larged his  enclosures  so  as  to  include 
150  acres,  and  he  possessed  the  same, 
so  enlarged  by  enclosures,  for  6  years 
thereafter,  claiming  the  same   as   his 
own — Held,  that  he  had  title   to  the 
100  acres  by  adversary  possession.  Ib. 

391 
See  Dill  of  Sale  1. 

Confiscation  2. 

Ejectment  2,  3,  4,  5,  6^  38. 

• Equitable  Estate  1,  2. 

Escheat  9. 

— —  Limitation  of  Actions  2,  3,  6,  10. 
Trespass  1,  3,  5. 

PRACTICE. 

1.  In  executing  a  commission  issued  to 
a  foreign    country,  for  the  purpose  of 
taking  testimony,  notice  is  not  neces- 
sary,   but  time    should  be  given  that 
the  opposite  party  may  exhibit  cross 
interrogatories.     Oiaings  v  Norwood's 
Lessee,  98 

2.  If  the  plaintiffin  an  action  of  afxiimp- 
sit    files  an  account   in  court  contain- 
ing the  items  of  his  claim  against  the 
defendant,  he  is  precluded  from  going 
into  evidence  to  establish  his  claim  in 
*  manner  different  from  that  in  which 
he  has  elected  by  his  account  to  con- 
sider the  defendant  his  debtor.     JJe 
fiobryv  Ikrrier,  222 

3.  Testimony  taken  in  a  former  suit  in 
chancery  between  the   same  parties 
for  the  same  relief,  where  the  suit  had 
been  dismissed  by  the   complaiimnt, 
may  be  read  in  evidence   by  the  de- 
fendant on   the   hoaring  of  the  new 

\--9L.  n.  71 


suit.  Per  Hanson,  Chan.    Hopkintv 
Stump  etal.  30 1 

Sec  Abatement  2. 

Answer  in  Chancery  2,  3. 

Uill  of  Exceptions  2. 

Bill  of  Review. 

Commission  &  Commisiioncrs  2,  Si 

Discount  5. 

Injunction  1. 

Location  of  Lands  1,  3,  5,  14. 

PREAMBLE. 

See  Acts  of  Assembly  4. 

PRECEDENT  COVENANT. 

See  Covenant  3,  4,  8. 

PREFERENCE. 

1.  S  B  sold  and  transferred  to  E  S,  80 
shares  of   bank  stock,   and  took  his 
notes  therefor.      Two  days  thereafter 
K  S  became  insolvent,  and  transferred 
all  his  property  to  trustees  for  the  be- 
nefit of  his  creditors.     The  trustees 
sold  the  slock,  and  received  the  pro- 
ceeds.    On  a  bill  filed  by  S  B  against 
E  S,  and  the  trustees,  claiming  to  be 
paid   the  amount  of  the  notes  out  of 
the  proceeds  of  the  sales  of  the  stock, 
in  preference  to  the  other  creditors, 
it  seems  that  he  was  not  entitled  to 
such  preference.     Winchester  et  al.  v 
Sronke,  1. 

2.  Where  a  preference  is  claimed  by 
one   of  the   creditors,  it  should    ap- 
pear by  the  proceedings,  that  there 
were  other  creditors  whose  claims  are 
proved  and  allowed;  also  the  amount 
of  the  estate  and  claims  should   ap- 
Dear,  so  as  to   show   the   proportion 
which  the  creditor,  claiming  the  pre- 
ference, is  entitled  to,  in  case  be  had 
no  right  to  a  preference.  Ibid. 

3.  If  the  laws  of  this  state  give  a  pre- 
ference to  its  citi/cns  in  the  payment 
of  the  debts  of  a    deceased,   the   de- 
fendant, if  sued  by  a  foreign  creditor, 
must    plead    such    preference.      Be 
Sobrif  v  Ti-rritr,  224 

Sec  Court  of  Chancery  24. 

Executors  &  Administrators  5,  6. 

PREROGATIVE. 

See  Proprietary. 

PRESUMPTION. 

1.  Unless  the  contrary  is  proved,  it  is 
presumptive  evidence  that  a  clerk, 
who  is  dead,    and   who  made  certaia 
entries  on  the  books  of  his  employer, 
delivered  the  goods  as  charged,  Clarice. 
v  Mtgruder,  ct  al.  77 

2.  Where  certain  facts  would  not  war- 
rant the  .presuming  a  mprtgage,  made 


ofrs 


INDEX, 


in  1706,  was  satisfied  bvfore  17RO, 
the  mortgagee  being  a  British  sub- 
ject, ami  as  iu%vcr  in 

possession  of  UK-  mor  gaged  premises 
—  the  party  n<  •'  y  title  un- 

der the  mortgagor.     Uu-itig»  •• 

V.-(X>fft  I.' 

3.  Where  the  court  would  not   direct 
the  jury  to  presume  a  tiUe  had  iv-en 
perfected,  conveyances  living  been 
produced  showing  a   defective  title 
had  been  transferred.  Ib. 

4.  The  jury  were  directed,  that  from 
the  length  of  tiir.e  elapsed  since   the 
making  a  will,  they  ought  to  presume 
that  it  hud   been   duly  executed  and 
proved.    Hull  r  (sittings  Jt'?.  Lessee, 

131 

5.  Possession  is  presumptive  evidence 
of  right,  and  a  defendant  in  ejectment 
cannot  be  deprived   of  his  pos 

by  any  person  ljut  the  rightful  owner 
of  the  land;  that  is,  he  who  hath  the 
jus  ponteatimua.  /£.  1  22 

6.  An  escheat  grant  is  prima  facie  evi- 
dence of  title,  but  being  a  prc-suni]>- 

of  right,  i«  only  exists   until  the 
contrary  i.s  pro  Ib. 

7.  The  jury  were  directed,  that  if  they 
believed   certain  facts,  then  the  pre- 
sumption of  law   was,  that  a  certain 
person  was  seized  of  the  land,   for 
•which  -the  ejectment  was  brought,   at 
the  time  of  his  will   and  death,   and 
no  presumption  from  the  said  tacts 
could  arise  tlut  he  w;w  not  to  seized. 

Ib.  126 

£te  Contract?. 
-  Ejectment  38. 
.  -  K  vide  nee  49,  71. 

—  —  Possession  5. 

PRETEH 

See  Location  of  Lands  1<J,  11,  12,  IK 
-  Verdict  4. 

PRIM\  I  '  veil:  EVIDENXT 
See  Evidence  15,  65. 

—  —  Justices  of  the  Peace. 

PRINCIPAL. 
See  Court  of  Chancery  15. 

PRIORITY, 
8e«  Preference. 


?  court  of  appeal*  roncurred  in 
tlie  cpiuion  expressed  by  the  cour* 
brl.>  '  '.it  re- 

.'  the  jnd.cn.  «-iit  cii  tin  J 
:-,  :tnd  Hwardi  d  H  prvc 
Buckunun  r  (iortvii, 


1.  The  court  of  appeals  having  rrvtrstd 

•judgment  of  the  court  belo-.v  on  thy 

forn,   >.t'  proceedings,  (there  heing  a 

ina'ernl    variance  !»t.:-.v.-i-n    tlic   wr'.t 

deration,  ) 

i  with  a  proccdendo.    I 
v  /.'"..  ^t,  <4  al.  345 


PIIOCLAMAT10N  WARRANT. 
See  Grant  4  1  . 

PROFITS. 

See  Guardian  1. 

PROMIiH. 
See  nua»anty  1. 

PROMISSORY  NOTE. 

1.  An  action  of  <!.<.<•,  nttfjxi,'  <>n  a  ptotris- 
sory    note  tndortcd  in  bltmk  by  the 
payee,  may  he  maintained  in  the  name 
of  the  payee  for  the  use  of  the  hold- 
er, altho'  the  holder  had  paid  a  valu- 
able consideration  for  the  note  to  the 
payee  at  the  time  of  the  endc'i-scmi-nt 

y  nitldlr,\  JJW»-/i. 

2.  A;  'tv    is  not  invalidated 
by  being  anftd  Ibid- 

See  Bill  of  I'-xchrmjye  . 
-  Notary  Public  1. 

PROPRIETARY. 

1.  On   the  question   whether  or  not  a 
grant  of  land  from  the  Proprietary  4o 

"K  M,  and  the  heirs  of  his  boi:> 
fully  begotten,  for  cvir," 
estate  tail  in  K  M,  and  upon  his  death. 
without  issue,  the  reversion  was  in  tin: 
state  standing  in  the  place  ot  the  pro- 
prietary, notwithstanding  R  M's  deed 
barring  the  estate  tail,  —  Held,  that  no 
interest  in  the  nature  of  a  lrn->(  • 
ever  w:is  M--.U  d  either  in  the  Propric- 
t  ny,  or  in  the  state  in  the  place  ot  tlu- 
Proprie.turv,  i>:>  act  having  been  dona 
which   coidd  ereah.-    a  trust  in  either, 
and   that  they  could  only  be   • 
tiered  as  parties  having  a  reversion:iry 
interest  expectant  on  the  determina- 
tion of  the    estate     tail.     Howard,   t 
M«al,;  it  id.  I.  "59 

2.  'I'liKJura  regalia,  as  attached  to  the 
person  of  the  King  in  England, 

did  attach  to  the  Lord  Proprietary  «» 
liind.  Ib. 

;1  T])e.  Proprietary  held  the  domim'oii 
of  Maryland  :ut<l  property  of  the  <oil, 
which  he  could  sell  and  tiUpo>e  of  \:i 
the  s:tinc  manner  as  any  other  person, 
and 

leg*!  ^,  as  in  tlie 

hands  of  any  other  j.  Ib. 

4.  (m    an  eqiu!..u!i'    ir.tt  -rvst    hcingob- 
.jlv  to  t!io 


INDEX. 


£03 


of  the  land-office,  the  party  became 
entitled  to  a  grant,  which'  he  could 
compel  of  the  Proprieiarv.  Ib. 

5-  Th?  reversionary  interes't  of  the  Pro- 
prietary reserved  in  land  granted  by 
Lim,  might  be  destroyed  by  deed 
mude  by  the  tenant  in  tail  ui.'der  the 
act  of  June  1773,  c/t  1,  as  cffVetnally 
as  the  reversionary  right  of  any  indi- 
vidual. ]ij 

6.  A  subsequent  grant  covering  land 
in  which  the  Proprietary  had  u'rever- 
sionury  interest,  will  operate  to  pass 
such  reversionary  interest.  2b. 

See  Instructions  1. 

Limitation  of  Actions  3,  5. 

State  1. 

PROTEST. 
See  Notary  Public  1 . 

PURCHASE  &  PURCHASER. 
She  Market  Overt  1,  2. 

Warranty. 

• Vendor  &,  Vendee  1. 

R. 

RECEIPT. 

1.  A  receipt  given  hy  the  plaintiff's  at- 
torney fora  sum  of  money,  stated  to 
be  in  fall  of  a  judgment,  is  not  conclu- 
sive evidence  that  the  judgment  is  sa- 
tisfied, so  fur  as  to  prevent  the  plain- 
tiff from  taking  out  execution  for  any 
balance  which  may  be  actually  due 
thereon,  lluglai  v  (fDonnell,  324 

RECITAL. 

1.  The  court  will  not  so  construe  the 
recital  in  a  bond  as  to  defeat  its  ope- 
ration and  render  it  a  nullity. 
M'Mechenv  Th,e  May  or  t  &e.  41 

See  Evidence  24,  25. 

RECORD. 
1 .  A  warrant  of  attorney,  authorising  an 

attorney  to  appear  for  the  defendant, 
need    not   be  spread  on  the  record. 


See  Issues  1 . 


REJOINDER. 


m*  The  jfayur,  &c, 
Ste  Authentication  2.  ' 

• Dill  of  Exceptions  1. 

Court  of  Appeals  1. 

Evidence  9,  58,  77,  78, 

Judgment  ]. 

Notary  Public  1. 

RECORD  EVIDENCE. 
See  Evidence  9,  58. 

REDEMPTION1, 
Sft  Equity  of  Redemption. 


RELATION. 

See  Escheat  4,  1 1. 

Grant  5,  10,  16, 18,  20,  21,  22,  29, 

37,  41. 

RELEASE. 

J.  A  bond  given  by  one  partner  for  a 
simple  contract  debt  due  from  the 
partners  to  a  creditor,  and  accepted 
by  him,  is  by  operation  of  law  a  re- 
lease of  the  other  partner,  and  an  ex- 
tinction of  the  simple  contract  debt, 
at  law  and  in  equity.  Williams  v 
ffodgRon .  474 

6Vt  Evidence  10. 

Ignorance  1. 

Insolvent  Debtor.  , 

RELEVANT. 
See  Slander  2. 

RELIEF. 

1.  The  relief  which  may  have  been  ob- 
tained  by   a   complainant,    who   has 
died,  may  be  granted  to  his  represen- 
tative reviving  the  suit.     Broaden  v 

Walker's  Ktff.  &c.  293 

2.  A  representative  instituting  aji  origi- 
nal   suit,  may   have   the  same  relief 
which  would  have  been  granted  to  his 
ancestor,  devisor,  testator,  Stc.       lit. 

REMEDY. 

1.  It  is  a  general  principle,  which  ad- 
mits of  few  exceptions,  tha|  in  con- 
struing contracts  made  in  a  foreign 
country,  the  courts  are  governed  by 
the  lex  loci  as  to  what  respects  the 
essence  of  the  contract;  that  is,  the 
rights  acquired,  and  the  obligations 
created  by  it;  And  the  remedy  or  mode 
of  enforcing  the  contract  is  to  be  con- 
formable to  the  laws  of  the  country 
where  the  action  is  instituted.  J)e 
Sobry  v  Terrier,  288 

2.  A  contract  made  in  one  country 
with  a  view  to  the  execution  or  per- 
formance of  it  in  another  country,  i« 
governed  in  all  things,  both  as  to  ita 
essence  and  the  mode  of  enforcing  it, 
by  the  law's  of  the  latter  country.  Ib. 
220,  288 

Sue  French  Laws. 

RENT, 
See  Guardian  1. 

REPEAL. 

I,  A  repealing  ordinance  cannot  destroy 
cr  affect  any  right  wliicb,  wa*  acquire-.' 


504 


INDEX. 


by  any  prr«on  under  tbc  first  ordi- 
mnce  before  the  repeal  therrof. 
AMechcn  r  The  Mayor,  t*c.  41 

Sit.  Acts  of  Assembly.' 

REPLEVIN. 

1.  If  tlie  declaration  in  an  action  of  re- 
f)h  vin  docs  not  allege  damage  to  hat  e 
been   sustained,  it  is  fatal,     f'agd  v 

£ri:  350 

2.  Where  the  declaration    in    replevin 
Alleged  the  taking  of  the  p  -operty  to 
be  in   Gay-street,  from   f/it  dwelling. 
house  of  the  paint  iff—  Held,   that  evi- 
dence of  the  defendant's  having  taken 
the  property  in    (ruy-fire<.t  was  suf- 
ficient, without  proving  that  he  took. 
it  from   the   dwelling-house   of   the 
plaintiff.  lb. 

3.  In  an  action  of  replevin,  the  jury 
may  (five  such  damages  as  they  think 
the  plaintiff  in  justly   entitled  to,  a« 
an  equivalent  for  the  injury  sustained. 
Dursfij  v  Cctsatcay,  412 

<Scf  Limitation  of  Actions  10. 

-  Pleading  10. 

REPRESENTATIVES. 
fre  Court  of  Chancery  2^,2.5. 

-  Kelief  I,  2. 

REPUTATION. 
Sec  Hearsay  Evidence  2,  3. 

RESERVED  LANDS. 

1.  The  Proprietary  instructions  requir- 
ing a  survey  to  be  made  of  reserved 
lands,  Sec.  read  in  evidence.  Sorting's 
Lfitee  v  Singery,  456 


RESIDENCE. 

1.  A  temporary  residence  in  any  coun- 
ty of  the  state,  is  not    buflicirnt  to 
enable  a  grantor,  being  a  citizen  of 
the  state,    to   acknowledge   a  deed, 
during  such  temporary  residence,  for 
land  lying  in  any  other  county  of  the 
state.  Hull  v  Gidinif&'s  Leuee,        383 

2.  A  permanent  residence  is  not  requir- 
ed of  a  person  whose  deposition  is  a- 
botitto  be  taken  under  the  act  of  July 
1779,  ch.  8,  to  perpetuate   testimony  j 
but  a  temporary  or  transient  residence 
i«  sufficient,     ''he  fact  of  resident  i-  in 
not  required  to  be  placed  on  rtcurd. 
Lrydrn  v  Taylor,  596 

Bfe  Acknowledgment  of  Deeds  3. 
•  •       Conveyance  o. 


See 


RETENTION, 


Str  Executors  it  Administrators  '. 
11. 

RETURN  k  RETURN  DAY. 
Set  Description  I. 

•——  Fieri  Facias  I. 

REVERSAL. 

1.  A  decree  in  favour  of  the  complai- 
nant,  but  directing  that  each    party 
bear  his  otvn  costs,  was,  on  the  appeal 
of  the  defendant,  reversed  us  u> 

and  a  decree  passed  directing  tliat 
the  complainant  should  recover  his 
costs  in  the  court  of  chancery,  lioff- 
nfr  v  flick *<m,  46 

H'frtliiit:;li:i  r  Bichidl,  5S 

Huffman  r  Brkcr,  4S6 

2.  Where  a  judgment  of  the  court  be- 
low,  after   a   general  verdict  in    as- 
funt]>sit^  \vas  reversed,   because  of  a 
defective  count   in   the    declaration. 
Grant  v  lt'td*dul',  ef  ul.  186 

3.  The  court  of  appeals  having  * 

ed  a  judgment  of  the  court  below  oit 
the  form  of  procerdini;-,  tin  re  being 
a  material  \uriance  bftwetn  tlie  \\i;t 
and  the  declaration,  refused  to  remit 
the  record  with  a  procedendo. 
:•  Jl'ihon,  et  ul. 

4.  The  court  of  appeals  having  concur- 
red in  the   opinion  expressed  by  tin- 
court  below  in  the  bill  of  exception.;, 
but   reversed    the    judgment  on  the 
form  of  proceedings,  awarded  a  />rr,. 
cedindo.     Smillt  <J  huchanun  v  Gir.-- 
ton, 

See  Court  of  Appeals  3. 
—  Covenant  8. 

KFA'ERSINC;  LINES 
•Vie  Verdict  1,  3. 

REVERSION. 
See  Proprietary  1,  5,  6. 

State  1. 

REVIEW. 

See  Bill  of  Review. 

REVIVOR. 

Ste  Bill  of  Revivor. 

RIGHT  OF  ACTION. 
See  Fjcc-.inent  19. 

Remedy  1,  2. 

IlHiKT  OF  ENIl:V 
See  Entry  1. 

RULES  OF  THE  LAND  OFFICE.. 

Sit   Grant  41. 
.Land  CfT.cc. 


INDEX. 


563 


RUNNINGS. 

See  Trespass  6. 

S. 

SALE. 

1.  A  slave  may  be  sold  by  parol  fora 
term  of  years,  and  after  which  to  be 
manumitted  by   the  vendee.     Kegro 
C-ato  v  I/vv;aid,  323 

2.  If  a  mortgagor  of  slaves  sells  them 
for  a  full  consideration,   and  after  his 
discharge  under    an    insolvent  law, 
purchases  them  of  the  mortgagee,  his 
subsequent  arts  in  perfecting' his  title, 
will  enure  in  law  to  confirm,  and  not 
to  defeat  his  contract   with   the  ven- 
dee.    f)or.iey  v  Gassuwuy,  411 

•S'ee  Freedom  i. 

Manumission  3. 

Market  Overt. 

— —  Warranty. 

SATISFACTION. 

1.  A  receipt  given  fur  the  plaintiff's  at- 
torney for  a  sum  of  money,  stated  to 
be  in  full  of  a  judgment,  is  not  con- 
clusive evidence  that  the  judgment 
is  satisfied,  so  far  as  to  prevent  the. 
plaintiff'  from  taking  out  execution  for 
any  balance  which  may  be  actually 
due  thereon.  Hughes  f  O'floraftil,  3~'4 

SCIRE  FACIAS. 

1.  If  the  defendant,  during  the  penden- 
cy of  a  scire  facias  on  a  judgment  a- 
gainst  him,  aliens  his  lands,  the  plain- 
tiff, after  a  Jiat  on  the  stire  facias,  may 
issue  A  fieri  facias,  and  levy  it  on  the 
lands  so  aliened,  without  proceeding 
against  the  alienees.  JUPJMderri/  v 
Smif/i's  Lessee,  72 

'2.  A  scire  facias  against  terre -tenants  is 
either  general,  without  naming  them, 
Or  special  against  them  by  name.  Jb. 

See  Insolvent  Debtor  1. 

SEAL. 

1.  The  mere  showing  the  seal  of  a 
court    of  our    own   state  in  another 
court  of  the  state,  is  a  sufficient  au- 
thenticatioi?  of  the  judgment  of  i.he 
court  it  purports  to  certify.  Dt  Solrnj 
v  Terrier,  218 

2.  The    seal  of  the  court  of  a  foreign 
country  docs  not  prove  itself;   but  it 
must  he  proved  by  testimony.         lb. 

3.  Tarol  evidence  admitted  to  prove  the 
seal  of  a  court  of  a  foreign  country,  lb. 

See  Bill  of  Exceptions  1. 

SEISIN. 
See  Ejectment  08. 

• Evidence  49. 

Possession  5. 


SEIZURE. 
Ste  Fieri  Facias  1. 

SET  OFF. 

See  Discount 

SHERIFF. 
See  Fieri  Facias  2. 

SIMPLE  CONTRACT  DEBT. 

See  Eond  2. 

Extinguishment  1. 

•  Release   1. 

SLANDCR. 

1.  In  an  action  of  slanJir  for  •words 
spoken,  it  was  alleged  that  tlie  de- 
fendant had  charged  the  plaintiff  wi& 
poisoning  the  defendant's  horse— 
llfld,  that  the  words  were  not  act 
tionttble.  Chaplin  v  Cruikthcni/ff,  217 

2-  The  court  refused  to  direct  the 

jury,  that  if  the  horse  was  alive,  the 
words  laid  in  the  declaration  were 
not  actionable,  the  same  being  irrele- 
vant to  the  issue.  Jb. 

3.  The.  com  t  also  refused   to  di. 

rect  the  jury,  that  if  the   words  spo- 
ken did  not  amount  to  an  offence  for 
which  the  plaintiff  might  be  indicted, 
they  were-  not  actionable,  as  the  de- 
fendant might  take  advantage  of  it  in 
arrest  of  judgment.  lb. 

4.  Where  the  words  charged  to  have 
boon  spoken  were,  that « 'he  the  said 
J  swore,  juke,  and  buxrre  in  a  lie,"  in- 
nueiidu,  "meaning  that  the  said  J  had 
committed  perjury;  that   the  said  i 
had  taken  a,  talse  path  before  a  magis- 
trate"— Htld,  that  the  words  were  not 
actionable.     Stiietly  v  Biggs,  365 

5.  No  words  are  actionable  unless  they 
impute  a  crime  to  the  plaintiff  which 
subjects  him  to  punishment.  Jb, 

0.  The  office  pf  the  innuendo  is  to  ex- 
plain doubtful  word*  where  there  is 
matter  sufficient  in  the  declaration  to 
maintain  the  action;  and  if  the  words 
in  themselves  are  not  actionable,  their 
meaning  cannot  be  extended  by  it  to 
i)>ake  them  actionable.  Jb. 

7.  If  the  words  may  be  understood  in 
'a  sense  not  criminal,  there  must  be  a. 
colloquium  in  the  introductory  pajl, 
to  show  they   were  spoken  in  a  cri- 
minal sense,   or  they  arc  not  actiona- 
ble, lb. 

8.  To  make  the  word  foresworn,  slan- 
der, it  must  be  introduced  b\  a  crille- 
quiunt,    setting    forth    seme  judicial 
proceeding   ia  wUicu  tb>"  -party  wa* 


SL 


A  v. 


th 

IliU  of  --ale  ». 
r'rredorn     . 
Main.- 


\uul. 


SPECIAL 

4.  In  .•  "<•'*  " 

?u  overseer,  and  a  ijttunhim  muruit  tor 

t^c  same  stm.T.-  —  UtM,  that  if  there 

<  -.p-ri.il  nyreemetit  between  the 

.  tin"  :  n«l  iXendunt  for  tlie   plxin- 

as   un    overseer,    the 

VtfY  could  not   recover  upon   his 

•ration.   (.  'i  tjin'r. 


tnrt  of  land,  decree 
for   a          chu  iL.cn  in  1. 

40 
fftfr*    2.  'I  be  specific  perfqi-mance  of  a  bond 

f«ir  conveying  J.tml, 

...ii^h 
d  lhat 
the  bond  • 

..u-d  tint  ;• 

SaiinJirfi,  tl  (i.c   v  Xmi;u»jnt  •;   ..        ,  1 
3.    'I  he  court   of  cliaii- 

force   a  spccilir    p< -rn  -n.:>i:.  e 
spcctil:itji  .u'lit:-! 
money,     h'.j'f.'.                             .      JO4 
See  C<;i;it  of  Ciiimcery  «>o, 
I'arot  Agreenitnt. 

SPF.C Tl .  \  :  WG  -  OH  !  ILVCT. 
See  S»peci(ic  Performa; 


SPECIAL  AUTHOR11  V 

V   A  special  .int'.iority  must   he  strictly 
'  ' 


pursued, 


7'ayl/fr, 


o'J6 


SPKCIAL  CONTJIACT. 

%tt  Special  Agreement. 

sn;!-l.\L  DKSCRIPTION. 

i 


VERDICT. 

•.  aihnisMons  of  counsel  of  certain 

1  in  a  special  verdict,  taken 

former  trial  hctwccn  the  sapie 

•  «  s   in  the  same  siction,  :ire   not 

evidence  on  a  new  trial  • 

iiijrttyv  Gaffim  *w^ 

SPECIAL  WARRANT. 

I     A   spccb}  warrant  is  used  U-  affect 
>:»ted  land,  in  '.yhicli  the  iocation 
'.he  cjuantity  of  ;« 
:ui«i  the  party  pavs  the  coi 

1,1  I.efon-  tlie   time    <rf 
;!iv  miinhrr 

..-   within   thr  usual   time    cf 
'.\  more 

•  i'tidc  Mid  pr.-i-U'<t!i  the  land  thus 

If  on    :h<:    .sun-i.y    bcin.if 

M  to  the  party  tliat  he 

much  Ixiul  M  he  paid  for, 

if   utirpius  of  his  UT«r- 

i,y  ^a(•.Ullt  land,    \vnirli 

a  <.j.  :mnt  is  competen\  to 

HI  «  <H:tl^uiiy,  (  r 

'he  land  ao  located  in. 
Jlamwyrid,  ti  al.  LeiscK 


•   of  a 

. 


STATE. 

1.  The  state  held  tlie  Proprietary^  Tt- 
versionai}  .i.rejy   by  subst' 

;i  in  liis  jil'-re,  :.• 
the    act   of    N 

ecmpi-'.-.nt   t'.  '  •••'tiguiMh  tha 

revi  :  '     of    the     bLate. 

J/fu 

Stc  Adver- 

'  ••!  *',  J,  6. 

Escheat  10. 

Limitation  of  Actions  5. 

—  Ofiicc  Found. 

1  ropriftaiy  I. 

SUCCESSION. 
S»e  French  Laws  i,  2. 

—  Iuti"-t:itc's  Estate  1. 
— —  '1'cstator  '. 

SUMMONS. 

1.   Cn  the.  death  of  a  defendant  in  as 
action  of  debt,  &c.   a  b»iuiinon.s   m.  y 
issue  toki. 
being  no  i 
tor   of  tl;- 
ant!   defend    the  action.      -Ac; 

•:!tt  4J5 

5.UIT.IIM  PI    \« 

I.  A  writ  U  error,  s»ft« -r  seizure  under 
a  furi  facia*,  and  1 
*vparstd«u.     Jlcut'y't  *1<j 

7 

Sl'RK  1  S 

1.  A  surety  is  not  answerable  beyond 
his  enic^fQicnt.     •A/'J/tV/ra   v    The 

Mutj'ir,  , 

2.  A  purchased  land  from  1),  uud  in  the 
bond  g-ivt-H  for  the  purchas>e   r. 

C  becomes  bounii  »»  .surety,  B  : 

him  wnn  an  icta  t^t  Uic 


tnoncy  ulitf'it  '»c  paM  from  the  sale  of 
wood  on  the  hind,  t<»  prevent  the  sale 
of  which  U  afterwards  obtained  nrt  in- 
junction. On  a  bill  in  chancery 
brought  by  the  surely,  it  was  decreed 
that  lie  shuO.ld  be  relieved  from  his 
suretyship,  Lynch  v  Cu/e^rttr.,  34 

3.  A  coutplainant  is  not  entitled   to    re- 
lief in  equity  against  the  executors  of 
a  joint  obligor,  who  was  a   surety  in 
tlu-  bond.      Per  If'inson,  Chan.     IV'd- 
liunis  v  Hodgson,  .574   CiwftJ 

4.  A  judgment  having  been  obtained  by 
JJ  against  K>,  and  C  his  suivtv,  a  $-J&- 
issued  thereon  against  H,  who  surviv- 
ed C,  and  wa.s  laid  on.  K's  land.    The 
administrator  of  C  paid  the  Hiriount  of 
the  judgment  to  K,    who  directed  the 
judgment  to  lie  entered  for  the  mo  of 
the  administrator  of  C.     A  veridit'umL 
fjrptmnS)  issued  for  the    Use  of  the  ad- 
ministrator of  (J,  for  a  sale  of  the  land, 
•\vris  returned  uu.iold,  <kc.  and  \va»  oil 
motion    of    the    defendant     quzxhml . 
Berry  v  A7cW/v,  503 

»V?e   Assignment  1. 

Court  of  Chancery  15,  24. 

Discount  5. 

Evidence  59,  60. 

SURVEY. 

if  re.  Deposition  1. 

Oant. 

Location  of  Lands. 

Parol  Evidence  3. 

SUSP  KNS  ION. 
Set.  Covenant  1. 

T. 

TALCS. 

See  Criminal  Prosecution  5,  6. 

TECHNICAL  WOltUS, 

See  Conveyance  ~. 

TEMPORARY   RF.STDF.NCK. 
Se«  Acknowledgment  of  D*'cds  3,  4. 
— —  Residence  2,  3. 

TENANT  IN  COMMON. 

1.  A  tenant  in  common  under  tlic  act  to 
direct  descents,  rn.iy  dispose  of  his 
imprest  in  any  particular  part  of  the 
estate  so  held  in  common.  R:iitii-!{fr 
r  S  mi  ill,  ,  4^1 

See  Acts  of  Assembly  6,  7. 

Court  of  Chancery  35. 

TEXAXT  IN  TAIL. 

See  Estate  1'uil, 


TRTlVt  0? 

1.    A  parol  sale  may  be  made  rff  a  Slav* 

fora   ter;n  ol'veurs^  and  aft.tr  the  (»X-- 

piration  thereof  to  be  Wamimirte'A  Hfr 

the   ven.lje.     xVVi/ro   Catn  v  Lifnrtifr'&L 


TERIiP.-TENANT. 

Sf,  Fieri  Facias  ;». 
—  Scire  I'acias  1  ,  2. 


Sec  Administration  Bond-. 
-  -  Pleading  1,  2. 

TEStAffJTi. 

1.   Any  creditor  may   site   an 
pn.  forma,    prov'uled  he  sliows  hittt* 
self  to  be  a   creditor  under  th- 
of  the    country   where    the   COiura  ' 
was  made;  and  as    long  :;s   assets   re- 


main' in  the  hui'.ds  of  such   exfc't'..--, 
he  is  an.s\ver:iblc  to  the  credit*.-:- 
if  there  is  any  surplus,  it  is  to  . 
the  mass  of  the  succession,  to  (><.•  di" 
tributed  according  to  the  laws  of  th«* 
ca';:r»ii-v  \vh.-ix-    the   testator   was   do- 
nilciled.      1)z  So-^ry  r  Terrier-,         2:24 
2.   Personal  pru^'-My  adheres  to  the  p^i'- 
srin,  and  wherever  the  testator  is  do- 
micil  at  the  time  of  lii>  death,  thft 
property    is  to  be   distributed  acv<»'-' 
dinj  to  the  laws  of  that  country.     /5. 

TESfrMONY. 

1.  Testimony  taken   in  a  farmer  su  it  ih 
rliiijicery   between  tiTC  sam«    j 
for  tl;e    s;ime  relief,   and   which   -.va* 
dismissed   by   the  complainant,    may 
be  read   in   evidence    by  the    d 
dan's  on  the  hearing  of  the  liew  s!l!»- 
Hopkina  v  Sftirnp,  ct  at.  3GL 

C.   The    testimony    of  a    witness     lioft 
resident  of  the  stutf,  taken  under  the 
act  of  Jnl./  1779,  ch.  8,  to  perpetual 
testimony,-    read    in    evidence. 
Ri:siiiKxi<K  2,  aria 
Hrydr.n  ii  Tuylori  3^6 

See  Evidence. 

TITLE. 

t.  Wlieff  an  ejectment  can  be  support- 
ed uo-ni  a'i  c'n-iitable   title  to  laiids-^ 
See  E.IE7TXENT  i'>,  au  1 
/dy*  S3  Ihni  v  ColdsljorOugh's  LtS?tr\ 

369 

Sc-5  Acts  2. 

-  Adversary  l'os«ession  3;  5,  6. 

-  -  Limitation   of  Actions  2,  6j  9»  1  1  , 

-  Trespass  6. 

-  Vendor  &.  Vendee  1. 

TREATY. 

SM»  Alien  1. 

-  Confiscation  3,  -t,  6. 


INDEX. 


rn; 

1.  loan  s<:li'»'\  »;   t: •-.;•.!•,;••  7.  c.  f.  the 
plamUlVorVci.vl   to  prove  that  he  was 
in  possession  of  the  land  on  which  the 
.i%>   was   alleged   to   have    been 
committed,   and  that   the  defendant 
committed   the  trespass  complained 
of,  on  the  land  M»  in  th.-  possession  of 
the  plaintiif,  at  the    place  by  him  lo- 
1  o.i  the   plots. — II  M,  t'.iat  such 
evidence    was  a.i.uL>aiuL-.     llugnnrc 


2.  The  plaintiff  offered  to  prove  hy  a 
witness,  that  he  was  prcscut  when  the 
land,  on    which  the    trespass  was  al- 
lejjvd  to   have  been  committed,   w;»s 
orijjiailly   located   cr  taken  up,  and 
tJuil  the  tract  was  then    located,  as  it 
now  U  on  the  plots. — Held,    that  the 
CM  l-jur;.  -A  a-  ulmisiible  to  prove  the 
ori^iiul  beginning  and  location  of  the: 
land.  PJ. 

3.  In  an   action  of  trespass  <j.  c.  /  on 
a  tract  of  land  called  G   L),  t'.ie  d'ei'en- 
dant  took  defence   far  a  tract  of'  land 
Called  -i,  on  a  / 

«d  trespass  w.ts  committed-- 
thai  the  [iLuntiJf  was  only  entit; 
recov  ei-  for  a  tr  oittodwithf 

it*  the  lines  of  the  truci  called  G  J),  .is 
tLe  samo  was  located  Uy  him  on  tne 
plots,  altho'  he  had  been  in  tit-.1  po..- 
session  ajtd  cultivation  of  the  land,  on 
tvtiich  tli.%  trespass  v/as  allied  to  be 
com  nitteti,  claiming  tli<-  same  a<  part 
of  (i  D,  for  upwards  of  50  years,  and 
it  luia  always  been  called  and  reputed 
^  part  of  that  tract.  G.  &  J.  CV«//i- 
tii'Vi  v  Bran.-..  3(i,S 

4.  In  trespass   y.  c.  f.    the    defendant 
tooli   defence    for,  and    l^-ated     on 
the  pints,  a  tract  of  land  Called  G   C, 
•which   include:!   a  tract   called  7'  .V, 
<»u  which  the    lri'.spa»i  \v.is  aliened  to 
have  been  committed,  and  which   l.i-,t 
tract  the  [jUintiff  !.K.-atctl  oil  th'-  ;)!•»(.•>; 
»«<1  be  also  located   l-.t  .No.  .:..". ",  I,  l»it 
he  did  n->t  coujitcrlocate    the  !• 

•    by    the    defendant.     The    de- 

..kiit  r^ad  in  evidence  the  grant  of 

G  C,  which  called  to  begin  at  llie  end 

of  the    second  I'm;.*  of  lot  No.  -5.-51  - 

,  that  it  *.i  •  -«ary  for  him 

tw  produce  th.'  grant  fi-r  lot  No.  .1J51, 

to  prove  the  location  ot  t'>at  lot,  and 

>efinninjf  of  G  C.     T-jmli 
Hi:-  r,  44-4 

5.  Hie  co-'.rt  refused  to  direct  the  jury 
in  an  action  of  tresjn*-. '/.  c.f.  that  >t 
wji-  ,-.  on  tht  pUuuiff,  in  or- 

'.  ion,    to  prove  a 
to  the   land,  on  which  the  tres- 
pass vu  alleged  to  be  committed,  or 


to  prore  »n  actual   possession  by  en- 
clu».i  i  on  the  plots.         ft. 

. \I.HO,  that  if  the  phiinutf,  20  year* 

before  bringing  the  action,  run  his 
lairl  in  the  presence  of  the  defendant 
to  a  point,  marked  on  the  plots,  as  a 
boundary  between  his  land  ami  the 
laud  ot  the  defendant,  and  tlu-  several 
lines  from  that  point  to  certain  other 
points,  abo  marked  on  the  pli. 
divisional  lines  between  them;  an.i  if 
the  defendant  has  at  no  time  commit- 
ted any  trespass  over  said  divisional 
lines,  in  such  case  he  is  not  a  m-ju-- 
ser,  and  not  liable  to  the  action,  uii- 
Icss  he  w;w  previously  warned  or  for- 
bid to  come  to  »aid  lines.  T bonus  o 

50  C> 


Tftovtnt. 

1.  A  slave  having  been  hired  by  the  rtc- 
turul  guardian  of  infant  children  to  a 
sea   captain  to    perform  a    < 

wages,  the  slave  to  be  safely  returned 
&.c.     The  >)£    sold    by  her 

owners  at  the  port  to  which  >Iir  »V<-nt, 

s:on.i  by  tile  captain,  and   Hit  or. 

..t'  another  vessel    bound 

he  never  return.-l.     In  an   action  of 

troi-er  by  the  children  against  the  cap- 

lnii  i'or  the  value    of  the  :,l.-u  t- — //>.!/, 

that  the  action  was  well  brought.  HL.V 

et  id-  v  Conner.  J  17 

2.  In  an  action  of  Irorcr   brought  by  an 
employer   against    his  overseer  to  n. 
cover  the  value   of  a  hhd.  of  tobacco 
made  on  the  plantation,  and  in-.peri.-d 
in  the  name  of  the  employer,  and  the 
note  delivered    to  the   overseer  to  be 
by    him  delivered    to  his  employer, 
but   whic'i  lined  :i,i.i  vjld  by 
the  over-seer,  as  hi>  share  of  th. 

of  six  bhds.  under  an   agreement  t-ti- 

:  into  l.ctween  the  parties,  stipu- 

latin.;  vhat    the  overseer  should  have 

on<;  sixth  part  of  all  tr.hucco   ma'ti — 

flfltl,  that  the  plaintiH" was  entitled  to 

.or.     Wccma  v  b/oZA'/i^T,         365 

See.  Discount  3. 

TKUST  k  TRUSTEE. 

1.  Whether  or  not  the  court  is  at  liber- 
ty, in  expounding  a.iicil  of  convey- 
ance creating  or  limiting  a  use  or 
trust  at  common  law,  an.l  not  united 
to  the  possession  by  the  statute  of 
,  to  reject  the  rules  eAtahl;-.h>-d 
by  the  common  law  in  the  con«'rnc- 
lion  of  a  conveyance  of  a  freehold  ci- 
Ute,  and  to  give  an  exposition  ac- 
cording to  tli e  int'-ntion  of  the  par- 
ties as  in  a  will  >  ll'illinsm.'crth  ct  ux 
v  itDomldtt  (J.  230 


INDEX. 


569 


2.  Whether  a  trust  estate,  or  any  but  a 
legal  estate,  can  pass  by  a  deed  of  bar- 
gain and  sale?  Ib. 

3.  Whether  a  trust  estate  is  answerable 
to  the  creditors  ofetatuique  truxt.   Ib. 

4.  As  to  the  distinctions  between  trusts 
executed   and  executory,    see  the  ar- 
guments of  counsel  in  this  case.       Ib. 

See  Court  of  Chancery  20,  24,  31. 

Discount  5. 

• Ejectment  40. 

..        Evidence  59. 

—  Parol  Agreement  2.  ^ 

— -  Preference  1. 

u. 

UNCERTAINTY. 

1.  There  being  no  designation  of  part 
of  a  tract  of  land,  contracted  by  a  bond 
of conveyance  to  be  conveyed,  nora- 
ny  description  whereby  it  can  be 
identified,  parol  evidence  is  not  ad- 
missible to  show  that  it  was  intended 
by  the  parties  to  be  laid  r-.Tin  a  par- 
ticular manner;  and  the  bond  is  void 
for  uncertainty,  except  on  the  princi- 
ple of  election.  Hunt  &  Porks  v 
Gist  etal.  493 

See  Description  4,  5. 

USAGE  &  PRACTICE. 
See  Land  Office  1,  2,  3,  4,  5,  6,  7. 

USE. 
See  Trust  &  Trustee. 

V. 

VACANT   LAND. 

1.  Land  included  in  a  grant,  but  exclud- 
ed from  the  certificate  of  survey  on 
•which  the  grant  issued,  cannot  be 
taken  up  as  vacant  land.  Tolson'/t 
Lessee  v  Lanham,  174 

See  Certificate  of  Survey  1. 

Grant  15,  16,  19. 

Relation. 

—  •-  Warrant  1 . 

Warrant  of  Resurvey  2,  4,  5. 

VACATING  GRANTS,  &c. 

1.  As  to  a  variance  between  a  description 
of  land  contracted  to  be  sold  and  con- 
veyed, and  that  used  in  a  grant  of  the 
land  as  a  ground  for  vacating  the  con- 
veyance, &c.  See  COUIIT  OE  CHANCE- 
JIT  33,  and 
Hammond  v  Sappington,  446 

See  Court  of  Chancery  44. 

Fraud  6,  8.  9. 

Grant  25,  41. 

—  Parol  Evidence  9. 

VOL.   II.  T2 


VARIANCE. 

1.  As  to  a  variance  between  a  descrip- 
tion of  land  contracted  to  be  sold  and 
conveyed,  and  that  used  in  a  grant 
of  the  land — SeeCocuT  OF  CujkHctKir 
33,  and 
Hammond  v  Sappington,  446 

See  Location  of  Lands  9.  10. 

VARIATION  OF  THE  COMPASS. 

1.  The  variation  of  the  compass  is  to  be 
ascertained  by  the  jury  on  the  evi- 
dence before  them.  Howard  v  Moale, 
etal.  Lessee,  274 

See  Grant  35. 

— —  Location  of  Lands  II. 

VENDITIONI   EXPONAS. 

See  Fieri  Facias  2. 

VENDOR  AND  VENDEE. 

1.  If  a  mortgage  of  slaves  was  subsist- 
ing, and  the  mortgagor,  claiming  the 
absolute  ownership  of  them,  sold  them 
for  a  full  consideration,  altho'  as  to 
the  mortgagee,  the  sale  would  trans- 
fer only  the  equitable  interest  in  the 
slaves;  yet  as  between  the  vendor  ami 
vendee,  the  operation  of  the  contract 
would  be  to  pass  the  absolute  owner- 
ship in  the  slaves  to  the  vendee;  and 
notwithstanding  the  after  discharge 
of  the  vendor  under  an  insolvent  law, 
and  his  purchase  of  the  slaves  from  the 
mortg-agce,  his  subsequent  acts,  in 
perfecting  his  title  to  the  slaves,  will 
enure  in  law  to  confirm,  and  not  to 
defeat  his  contract  with  the  vendee. 
Darsey  v  Gaasaway,  411 

See  Bill  of  Sale  1 . 

Equitable  Estate  2. 

VENIRE. 
See  Criminal  Prosecution  5,  6. 

VERBAL  AGREEMENT  &  CON- 
TRACT. 

See  Contract  3. 

Parol  Agreement. 

Warranty. 

VERDICT. 

1.  Where  the   plaintiff  has    made  but 
one  location   on  the  plots  of  the  be- 
ginning of  the  tract  of  land  for  which 
the  ejectment  is  brought,  and  that  is 
counterlocated,    the  jury  cannot  find 
a  beginning  for  the    plaintiff  different 
from  that  located  by  him.    Hammond, 
et  al.  Lessee  v  Norris,  14S 

2.  The  jury  cannot  find   a  location  of 
their  own,  but    if  they  find  for  the 


570 


INDEX. 


plaintiff,  they  must  find   <ome  one  of 

hi-  l-H-a'-.or.s  on  the  plots.  /.'». 

".   It"  tin-  beginning  of  :\   tract  of  land  is 

or  cannot  (>e  proxcd. then  the  br 

ginning'  i*  to  be  fmmd  h\  re\  er>ing  the 

lines  of  th<-  tr.4>  t  from  the  first  known 

and  established  boundary.       lit.  419 

4.  The  jur\  by  their  verdict  in  an  xcti- 
on  of  <. -jectment,    found  the  true  loca- 
tion of  the  land  tor  which  the  eject- 
nient  was  brought  '.o  be  from  It-: 

on  the  plo's  ;<i  n,  to  .1,  to/Jft/r  perches 
Ar/»nr  big  /',  tlie  head  ot  7/'«  brunch, 
and  »)ien  to./;  they  jil>o  found  for  tlie 
plaintiff  his  pretension*  (not  being  to 
the  extent  of  tlie  said  location)  to  be 
from  .?  to  a,  to  f .  to  fi.iir  perches  btlow 
/'.  tin-  h. -;».!  ot '//'.»  branch,  and 
then  to ./?,  and  that  tlie  defendant  was 
guilty  of  the  trespass  complained  of 
within  the  said  pretensions  :md  not 
guilty  as  to  the  n-iduc  of  the  tres- 
pass complained  of  in  the  residue 
of  the  land — Hi  Id,  that  there  was  no 
uncertainty  in  the  verdict.  Howard 
•/•-,  et  a  I  Ijcttee,  276 

5.  In  '-'ii  action  of  ejectment  for  50  acres 
of  arable    land,    10  acr.-i.  of  meadow 
and  1U<,  acres  of  wood-land,  part  of  a 
tract-  o*  land  called  //  /',  the  jury  by 
their  verdict  found  the  tme  location  of 
that  tract,  and  .«No  the  lorationsof  oth- 
er tracts  for  which  the  defendant  took 
defence — They    aUo    found     for  the 
plaintiff  all   the  land    called  //  /'.   :.s 
1       .'••!  by  them,  which   lies  clear  of 
the  other  tracts  so  located  by  tbf-ni, 
and    which    li<-s  to  t'ue  '-astwavd    of  a 
division    line    between  the    plaintiff's 
lessor  and  J  S,  from  a  i  articular  po  nt 
to  another  point — Iltld,  that  the   ver- 
dict,    and    die    judgment     i .  ndcred 
thereon,    were    not    uncertain,     and 
vere  not  for  more  land  than  the  plain* 
tiff  claimed'  in    his    action.     Hull  v 

;*93 

fi.  \\li<re  tin  ti«ct  of  thr  forgery  of  a 
c-rt'fn.:i'.-  ;•(' -'iney,  under  the  grant 
on  which  ;.t  rl.t'm..  .!, .  :.iue 

before  the  c'.urt  and  jury  collaterally, 
in  an  action  <  •',  and  was 

m>t  directly  rn  (jucstion,  the  issue  be- 
twri-n  the  partits  being,  who  had  the 
right  of  possession  to  the  land  in  con- 
troversy, the  vtrdict,  which  was  in 
i:.\')«jr  of  ihe  defendant,  r.aiuu»t  he  n-- 
ceivpd  an  evidence  to  pnne  that  the 
cer  •  not  for?-  ; 

»•  1  i  a/, 

7  —       i  ,t  having  directed 

the  jt.rv,  tlMt  it   they  Co  nui  (lie  certi- 

'.at   nothing  pas 
the  yran:,  .«.  u.uj  be  i/;c»Uoi.cd  whe- 


ther the  verdict  could  conclude  the 
plaintiff,  if  the  fact  of  forgery  hud 
been  directly  ii.  is-'  ,/£. 

See  Court  oM'lianccry  1", 

—  Issues  2. 

—  Judgment?. 
Keversal  1 . 

— —  Variation  of  the  Compass. 

VKS  I  I-.D   KM'ATK. 
See  Acts  of  Assembly  6. 

VESTKD  RIGHTS. 

See  Acts  of  Assembly  J. 
Kepeal  1. 

VINDICTIVE  DAMAGES. 

Bee  Covenant  7. 

VOID  fc  VOIDABLE. 

See  Evidence  9. 
— —  Urant  15. 
Uncertainty  1. 

w. 

\VARKANT. 

1.  The  nature  and  efficient  qualities  of 
the  different  kinds  of  warrants  \\  hu  h 
arc  used  to  take  up  vacant  land— . 
&ee  COM.XOK  WABRAXT  I.  Si-niAt 
I\'ABR.»>T  I,  WABHAWT  or  KKI>LU- 
TKT  I ,  and 
Hannnnnd,  et  al.  Lessee  v  Nurrif,  132 

WARRANT  OF  ATTORNEY. 
See  Corporation  1. 
-  Kccord  1. 

WARRANT  OF  RESURVF.Y. 

1.  A  warrant  of  resurvey    is    taken  out 
for  the  purpose  of  re.-.ur\e%  ing  a  tract 
or  parcel  of-  land  in  which  the   party 
IIHS  a   f«e  simple.     In  virtue  of  *ur.h 
\varrant   he    acquires  a  right  <•: 
emption  in  all  the  adjoini' 

and  if  he  makes  his  sun«-y,  an- 1 
the   caution   money  within  l«-:>   \tars 
from  the  date  of  hi*  warrant,  h- 
Co;.  ;,|«  ic  equitable  'list-Test   in  all  the 
•  \   included  in  !  tltun- 

mmtil,  ft  al.  J^cffcr  r  A>-«  1    - 

2.  A  prr-.on  vvl.o  takes  out  a  warrant  of 
resuney  wiihout  bi-ir,;;  s<  i/rd  of  tlio 
original  tract   ; 

title   iu   the   vacant   land   included  in 
imc.h  rf-uney,    wh»-n  tlu-  com;  • 
mone\   is  paid,  miles*  wn.c-  ..:!,.  r  f-i-r- 
mn    in    til;'    n;ean    t.nn-    I 
terested  in  RI:<  >"d. 

3.  A  warrant  of  i 

a   per*'in    r."t    •(••?.<  d    ot   ' 

tract,  is  nut  Ji^ul  notice  of  the  loca 


INDEX. 


tion  of  the  warrant.    Hammond,  dal. 
Lessee  v  jVwm,  123 

Hammond,  et  ul.  Lcssf-e  v  Wtirfeld,  151 

4.  A  grHiit  for  vacant  land,  not  contigu- 
ous to  the  original  tract,  included  in  a 
certificate  under   a  warrant  of  resur- 
vey,  will  operate  to  pass  such  vacant 
land,  unless  some  other  person  in  the 
mean  time  becomes  interested  in  such 
vacancy.      Hammond  'et  al.  Lessee  v 
Warfidd,  152,  15J. 

5.  Where  vacant   land,   not  contiguous 
to  the  original  tract  resnrveyed,  is  in- 
cluded in  a  certificate  of  resurvey,   it 
is  not  legal  notice   of  the  location  of 
the  warrant  \miil  the  certificate  is  re- 
turned to  the  land  office.          Jb.  155 

See  Grant  41. 

WARRANTY. 

1.  If  the  seller  of  goods  affirms  them 
to  be  of  a  particular  quality,   and  the 
buyer  receives  them  upon  the  credit 
of  this  affirmation,  and  they  afterwards 
appear  to  be  different,  the  purchaser 
may  return   the  goods,   and  recover 
back  the  money,  in  an  action  for  mo- 
ney had  and  received;  or  he  may  even 
have  this  action  without   a  return   of 
the  goods   if  he  give    notice  to    the 
seller  where  they  are  deposited.  Rut- 
tcrvBlnlie,  253 

2.  If  A  sells  ahorse  to  B,  affirming  him 
to  be  sound,  and  1$  receives  the  horse, 
and  sees  Out  on  a  journey,   but    finds 
the  horse  to  be  unsound,  and   leaves 
him   on   the   road,    he   may   recover 
buck  the  money   he  paid  for  him,   in 
an  action  for  money  had  and  received, 
if  he  gives   notice   to    A   where  the 
horse  is;  and  lie  is  not  bound  to  re- 
turn the  horSe.  Ib. 

3.  But  if  B  gives  no  notice  to  A, 

but  sends  the  horse  to  vcndue,  and 
sells  him  for  half  what  he  gave — Here 
B  has  elected  to  abide  by  his  contract, 
and  he  can  never  resort  to  A  to  make: 
good  the  difference  ef  price.  Jb. 

4.  .If  a  merchant  buys  goods,  the  seller 
warranting  them  to  be  of  a  particular 
description  of  quality,  and   the  mer- 
chant, without  examining1,  sends  them 
to  the  West  Indies,  where,  upon  open- 
ing,   he  finds  them  not  to  be  of  the 
quality  warranted,  he  may  store  them, 
give  notice  to  the  seller,  and  recover 
back  the  money  paid  for  them,   in   an 
action  for  money  had  and  received;  or 
he  may  bring  Ins  action  on  the  special 
agreement  of  waiTu.,y,  and  recover 
damages  for  the  full   amount   of  the 
injury   he  has  sustained — nor  is   he 

«r  J  U>  return  the  goods,   or   put 


himself  to  any  further  expense  or 
trouble  about  them.  Jb. 

5. But  if  the  merchant  sells  the 

goods,  and  receives  the  amount  of 
sales,  not  as  agent  for  the  seller,  but 
upon  his  own  account,  it  will  deprive 
the  merchant  of  his  remedy  upon  the 
warranty.  Ib. 

See  Counterfeit  Bank  Note. 

WILL. 

1.  Whether  or  not  a  will  was  legally  ex- 
ecuted and  proved,  are  matters  of  fact 
for  the  jury.     JUailv  Gittings  Jr.  Les- 
sec,  121 

2.  The  jury  were  directed,  that  from 
the  length  of  time  elapsed  since  the 
making  of  a  will,  they  ought  to  pre- 
sume it  had  been  duly  executed  and 
proved.  Jb. 

3.  A  paper  was  exhibited  for  record  as 
the  last  will  of  C  W,  proved  to  have 
been  signed  by  him  at  a  lime  when 
he  was  about  to  leave  the  state.     It 
was  couched  somewhat  in  the  form  of 
a  letter,  and  stated,    "If  I  should  not 
come  to  you   again,  my  son  M  shall 
pay,"  f*c.     Evidence  was  given  that 
he  went  to  Kentucky,  and  returned, 
and  that  he  lived  several  weeks  there- 
after— Held,  that  the  paper  could  not 
be  admitted  to  record  as  the  will  of 
C  W .     Wagner  v  M'Dcnald,          346 

4.  In  expounding   wills,  the  first  and 
great  principle  to  be  observed  is,  that 
the  intention  of  the  testator  is  to  pre- 
vail, unless  such  intention  is  opposed 
to  some  rule  of  law.  Drury  £<?  Bennett 
v  Negro  Grace,  355 

See  Axithentication  1. 

Bequest. 

— —  Wevise. 

— —  Evidence  33. 

•  Foreign  Laws  1. 
— —  Parol  Evidence  ?. 

WITNESS. 

1 .  If  the  testimony  of  a  witness  is  in« 
tended  to  be' objected  to  in  an  action 
of  ejectment  because  of  his  holding1 
adjoining  lands,  &.c.  his  interest  must 
be  located  on  the  plots.     Hall  v  Gii- 
tings  Jrs.  Lessee,  J20 

2.  'I  he  declarations  of  a  former  holder 
of  adjoining  lands  as  to  the  bounds  of 
the   fend   in   dispute  in   an   action  of 
ejectment,  were  admitted  inevidence, 
it  not  appearing  by  the  plots  that  lie 
was  interested.  Ib.  121 

3.  A  ft.me  cwcrt,  one  of  the  grantors  in 
a  deed  conveying  a  tract  of  land,  the 
acknowledgment  of  which  by  her  hav- 
ing  Lci-ii   dfccUccd  to  be  ueJ'cctive, 


INDEX. 


*»•  admitted  to  give  evidence  on  the 
part  of  the  defendant,  in  an  action  of 
ejectment  brought  for  the  same  hn.l, 
by  n  person  claiming  under  her  deed. 
Hni:  Lessee.  «i86  ("note. _) 

4».  The  deposition  of  a  witness,  non  re- 
sident (it  .  taken  under  the 
act  of  July  1779,  cA.  8,  to  perpetuate 
testimony,  admitted  in  evidence— feee 
RESIDENCE,  2,  and 
Brydtn  v  T\iylor,  396* 

5.  A  witness  may  recur  to  a  paper, 
which  is  not  rvidence,  for  the  pur- 
pose of  refreshing  his  memory.  Dor- 
gey  v  Uassawayt  410 


See  Answer  in  Chancery  I,  2, 

Competent  Witn«. 

Credibility  1. 

Deposition  I,  2. 

Manumission   I,  2. 


See  Slander. 


WO  [IDS. 


WKIT  OF  ERROR. 

1 .  A  writ  of  error,  after  seizure  under  A 
&  fieri  fiifUiSf  and  before  a  sale,  is  no 
titpersedeai.  JJealty'sAd.'n'r.  v  Chap 
tine, 

Sec  Abatement  I. 


END  OF  THE  SECOND  VOLUME. 


UC  SOUTHERN  REGIONAl  LIBRARY  FACILITY 


001  211  823    8 


